Supreme Court confirms power to grant declaratory and anti-suit injunctive relief even where no arbitration is commenced or proposed

In AES Ust-Kamenogorsk Hydropower Plant JSC v AES UstKamenogorsk Hydropower Plant LLP [2013] UKSC 35, the Supreme Court has confirmed the jurisdiction of the English courts to declare that a claim can only properly be brought in arbitration, and grant anti-suit injunctions restraining court proceedings brought in breach of an arbitration agreement, even in the absence of an actual, intended or proposed arbitration.

Following the ECJ’s decision in Allianz SpA & anr v West Tankers Inc (Case C 185/07) [2009] 1 AC 1138, the English courts would not grant such an anti-suit injunction where the court proceedings in question are commenced or continued in foreign jurisdictions that are within the regime of the Brussels Regulation or the Lugano Convention.

The judgment also clarifies that the English courts’ jurisdiction to grant anti-suit injunctions to restrain foreign court proceedings brought in breach of an arbitration agreement derives from s37 of the Senior Courts Act 1981 (the SCA 1981) and not from s44, or any other provision of, the Arbitration Act 1996 (the 1996 Act)…

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