“This bond and all non-contractual or other obligations arising out of or in connection with it shall be construed under and governed by English law.”
“In case of dispute arising between the Parties about the validity, interpretation or performance of the Bond, the Parties shall cooperate with diligence and in good faith to attempt to find an amicable solution. All disputes arising out of or in connection with the Bond (which cannot be resolved amicably) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said ICC’s Rules. The place of arbitration shall be Paris and the language to be used in the arbitral proceedings shall be English.”
“In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v. Aeakos Compania Naviera S.A., [1994] 1 W.L.R. 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case.”
“Although the criteria for the grant of an anti-suit injunction are generally strict, the conditions are relaxed where the purpose of the injunction is to prevent the defendant from commencing proceedings in breach of a contractual provision in the form of an arbitration clause or an exclusive jurisdiction clause. The general effect of the authorities … is that an anti-suit injunction will readily be granted if: (a) the claimant can demonstrate with a high degree of probability the existence of an arbitration clause to which the defendant is a party and which covers the dispute; and (b) there are no exceptional circumstances which militate against the grant of relief.”
“Where an injunction is sought to restrain foreign proceedings in breach of an arbitration agreement - whether on an interim or a final basis and whether at a time when arbitral proceedings are or are not on foot or proposed - the source of the power to grant such an injunction is to be found not in section 44 of the 1996 Act, but in section 37 of the 1981 Act. Such an injunction is not “for the purposes of and in relation to arbitral proceedings”, but for the purposes of and in relation to the negative promise contained in the arbitration agreement not to bring foreign proceedings, which applies and is enforceable regardless of whether or not arbitral proceedings are on foot or proposed.”
“The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.”
“• The seat of the arbitration is not relevant to determine their jurisdiction to order interim relief under Article 1449 of the Code de procédure civile. • Rather, the French courts’ jurisdiction to order relief under Article 1449 depends on whether France is a proper forum according to the usual French principles of conflict of laws.”
“Based on the foregoing, I am of the view that French courts will consider that they lack jurisdiction to entertain any application for pre-arbitration interim relief from the Claimant against the Respondent.”
“In other words, French courts would fundamentally consider that it is not their place to intervene in the present configuration.”
“Consequently, I believe that, while Mr Justice Bright’s reasoning has my utmost deference, his concerns over ‘a conflict or clash’ with French courts or that ‘the support of this court would be unwelcome’ are ill-founded. Despite the seat of the arbitration being in Paris, French arbitration law does not consider that, at this stage, French courts should be the ones to deal with this situation here, i.e. a situation that presents no link to France other than the seat.”
“Because of this, the question of the reception by French courts of this court’s anti-suit injunction order is, at best, hypothetical. Having said that, if that hypothesis were to materialise, I am of the view the French courts would recognise the anti-suit injunction order for the reasons set out hereinafter.”
“I respectfully disagree with Mr Justice Bright’s reading of French law in this respect, for essentially two reasons. First, it is a matter of fact there have been precedents where French courts have recognised foreign anti-suit injunctions.”
“… does not contradict international public order the “anti-suit-injunction” whose purposes, outside the scope of conventions or of Community [EU] law, is to sanction the breach of a pre-existing contractual obligation.”
“Outside the scope of conventions or community law, a so-called anti-suit injunction whose purpose is only to sanction the breach of a pre-existing contractual obligations is not contrary to the French conception of international public order.”
“In light of the foregoing, it is my opinion that French law does not have any ‘philosophical objection’ to anti-suit injunctions.”
“A French court would perhaps be even further inclined to recognise an anti-suit injunction issued by a United Kingdom (‘UK’) court [for that, I understand him to mean a Court of England and Wales] in a situation where their respective interests are aligned. I believe that would be the case here for two reasons: • First, the anti-suit injunction would be rendered to safeguard arbitral proceedings seated in France – a jurisdiction known to be a favourable venue for arbitration – in assessing where French courts are not empowered to order any interim relief. As a result, an anti-suit injunction issued by UK courts would be in line with the French ‘vision’ and would not, in my opinion, be deemed to contradict the ‘French conception of international public order’. • Second, in the context of the international sanctions enacted against the Russian Federation following the invasion of Ukraine, the interests of French and English legal orders may be even more aligned. The anti-suit injunction would prevent the Respondent from litigating claims before the Russian courts in breach of the Bond’s arbitration agreement. Ultimately, if French courts were to refuse to recognise such an anti-suit injunction, they would act against the EU and French sanctions policy – designed to undermine the Russian Federation’s abilities to pursue its aggression war against Ukraine – and thus undermine French and EU public policy. It cannot be excluded that a potential adverse decision rendered by the Arbitrazh (Commercial) Court would ground attachment proceedings against the Claimant, an EU corporation.”
“… a foreign party attempting to undermine a French court’s exclusive jurisdiction over a France-registered patent litigation pending before it, through the use of a US anti-suit injunction. The US anti-suit injunction’s purpose was not to preserve ‘a pre-existing contractual obligation’ – be it a jurisdiction clause or an arbitration agreement – but to bar one party from ‘pursu[ing] any action for patent infringement against the [opposing] companies and/or their customers, to protect the French part of EP 268 patent, that it owns and particularly before French courts’. In the cour d’appel’s view, this would amount to a ‘manifestly unlawful disturbance’ as ‘it infringes the right of the holder of an industrial patent to access the only judge competent to rule on the infringement of its title.’ i.e. the French courts. The French courts have therefore issued an injunction against this anti-suit injunction in order to preserve their own jurisdiction, which, it must be stressed, is considered by French courts themselves to be exclusive in this matter.”
“…in the present case, the French courts are not competent to hear claims for pre-arbitration interim relief. Therefore, the risk of a French court issuing an ‘anti anti-suit injunction’ in response to this court’s potential anti-suit injunction is [in the opinion of Professor Audit] virtually non-existent.”
“It follows that he does not interpret that decision to indicate that French courts are hostile to anti-suit injunctions, or that they would be “unwelcoming” of an anti-suit injunction against the Respondent.”
“Regarding the questions initially submitted to my analysis, my conclusions are the following: “(a) French courts will consider that they lack jurisdiction to grant any pre-arbitration interim relief to the Claimant against the Respondent for the purpose of safeguarding the arbitration clause in the Bond; and “(b) French courts will welcome, within the French legal order, an anti-suit injunction issued by the UK courts to safeguard an arbitration agreement.”
“…‘for the purpose of and in relation to arbitral proceedings', but for the purposes of and in relation to the negative promise contained in the arbitration agreement not to bring foreign proceedings….”
“An English court should have effective powers to support an actual or anticipated arbitration … However, such powers should not be used where any other foreign court is already, or is likely, to be seized of the matter, or where the exercise of such powers would produce a clash with any other more appropriate forum.”
“the resolution of the dispute in the State applying restrictive measures against Russian persons, namely France, will be carried out in compliance with the guarantees of fairness and impartiality.” (b) it would be difficult for RusChem to obtain representation there; (c) restrictions of travel compound the difficulties.”
“Permission be granted to the Claimant to serve the Arbitration Claim Form, Application and supporting evidence, together with this Order on the Defendant through email to …”