Last night, Sir Richard Aikens delivered the COMBAR lecture. Among the topics he covered was Regulation 1215/2012 (Brussels I recast).
In the discussion which followed, it was clear that COMBAR members were divided in opinion as to whether Regulation 1215/2012 could be interpreted (and would be interpreted) to permit the English courts to issue anti-suit injunctions in support of arbitration. It was suggested that this could be supported on the basis of the Advocate General’s Opinion on Gazprom (see our post on this decision) although many thought the CJEU would not be persuaded to follow this path even bearing in mind the changed recitals in the recast regulation.
More than one participant in the discussion had been involved in a case where the possibility of an injunction post Regulation 1215/2012 had arisen. In those cases, however, the arbitration tribunals had adopted procedures so as to resolve the jurisdiction issue promptly and before any substantial steps had been taken in the foreign litigation.
The issue remains one to watch although any party seeking an anti-suit injunction relying on the AG in Gazprom will almost certainly need to be ready for a trip to the CJEU.