January 29, 2020

English Courts’ Supportive Approach to Arbitration: A Summary Of Recent Case Law

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The English courts are well known for their supportive approach to arbitration, and a number of recent decisions have further reinforced and justified that reputation. These include cases where the court exercised its powers under the Arbitration Act 1996 (the “Act”) to support the arbitral process, either by way of granting anti-suit injunctions or robustly exercising its supervisory jurisdiction when determining challenges to awards.

1. Anti-suit Injunctions

During the second half of 2019, the High Court granted several anti-suit injunctions enforcing parties’ agreements to submit their disputes to arbitration. This approach is in keeping with the Court of Appeal’s historic guidance that the English courts should grant an anti-suit injunction in support of an arbitration agreement “provided that it is sought promptly and before the final proceedings are too advanced.

  • In A and another v B and another [2019] EWHC 2478 (Comm), the High Court held that the mere possibility of reaching inconsistent decisions in different jurisdictions and/or allowing multiple proceedings to proceed was not a sufficient reason to refuse an anti-suit injunction in circumstances where a clear arbitration agreement bound the parties. The court held that there must be a “strong reason” not to enforce an arbitration agreement, which the defendants failed to show. The court proceedings which the defendants had started in Israel were not far advanced, and it was irrelevant to the question before the English court (as the supervisory court based on the seat of the arbitration) that the Israeli court would be determining its own jurisdiction. Mr Justice Jacobs stated that the possibility of multiple proceedings (because the Israeli proceedings would continue with certain defendants that were not parties to the arbitration agreement) is “simply the natural consequence of the agreements which the parties have reached”; it did not provide the required strong reason not to enforce the “clear contractual bargain” of the parties to arbitrate.

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