The European Court of Justice, English Courts and the Continued use of the Anti-Suit Injunction in Support of Agreements to Arbitrate: Through Transport v New India

Abstract

The author offers an analysis of the English Court of Appeal decision in the Through Transport case (Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd (2005). The Court confirmed that anti-suit injunctions may still be used to prevent the continuation of litigation brought in breach of an agreement to arbitrate in England. This was a surprising development given recent decisions of the European Court of Justice (ECJ) which were thought to have put an end to such actions by English or any other EU member court, vis-a-vis persons appearing before the courts of other members of the European Union at any rate. Although the ECJ forbade the use of anti-suit injunctions, in very strong language and in all cases, the Court of Appeal held that the prohibition did not apply, as the decisions before the ECJ had involved matters governed by the Brussels Regulation, which does not cover arbitration.