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Charles Samek QC & Alex Robson Successful in Dismissing Application for Anti-Arbitration Injunction
The Commercial Court (Andrew Smith J) today handed down judgment
in the case of AmTrust Europe Limited v Trust Risk Group SpA
 EWHC 1927 (Comm) dismissing the Claimant’s application for an anti-arbitration injunction against the Defendant in relation to an ongoing arbitration in Milan.
In his judgment, Andrew Smith J reaffirmed that the Court’s power to make an anti-arbitration injunction was to be exercised in exceptional circumstances and with caution, with the ultimate question being whether it was just and convenient to order an injunction under section 37 Senior Courts Act 1981. He noted that in the case before him both parties accepted that there was a valid and binding arbitration agreement contained in a commercial agreement between the parties (the framework agreement). However, the Claimant submitted that matters which the Defendant sought to raise in the Milan arbitration were governed by another commercial agreement (the ToBA) between the parties which provided for the exclusive jurisdiction of the English courts. The judge held that the Claimant had raised a jurisdictional objection before the Milan tribunal and that there was a route of challenge available to the Claimant if it disputed any decision of the Milan tribunal, namely to the Milan Court of Appeal as the supervisory court. He further held that it was for the arbitrators to determine whether the Defendant’s claims fell within the framework agreement and thus within the scope of the arbitration agreement and that there were no exceptional reasons justifying interference by the English court. He also rejected the Claimant’s submission that a jurisdiction decision of the Court of Appeal between the same parties ( EWCA Civ 437) amounted to any finding by the Court of Appeal that the claims which the Defendant was advancing in the Milan arbitration did or did not fall within the scope of the arbitration agreement in the framework agreement.
The decision is important because:
- It reaffirms the exceptional nature of the jurisdiction to make an anti-arbitration injunction.
- It distinguishes the present case, where there was no dispute that there existed a valid and binding arbitration agreement, from those cases where the English courts have been more ready to grant injunctive relief, namely where there was no relevant arbitration agreement or where there had been a prior finding that claims sought to be made in an arbitration in fact fell within the scope of an English exclusive jurisdiction clause.