Anti-suit Injunctions in International Commercial Arbitration

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ISBN: 9789077596999 | 9077596992
Cover: Hardcover
Copyright: 9/30/2010

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Anti-suit injunctions are orders restraining a party from commencing or continuing proceedings before a state court and can be issued by a court or arbitral tribunal. The book examines if and when anti-suit injunctions can be ordered and contemplates their legal conformity. It deals with jurisdictions familiar with anti-suit injunctions (e.g. England and USA) and compares it with the legal setting in Switzerland. The analysis not only relies on publicly available material but also on confidential arbitral case law. Besides information on arbitral proceedings reported directly by arbitrators, the author was able to take into consideration unpublished material from proceedings conducted under the ICC Rules and the International Arbitration Rules of Zurich Chamber of Commerce (now replaced by the Swiss Rules). This is a new volume in our acclaimed International Arbitration and Commerce series which provides a thorough analysis of the use of anti-suit injunctions in common law and civil la

Acknowledgments	p. xi
Introduction	p. 1
Preliminary Considerations	p. 3
Jurisdictions Covered	p. 3
The Arbitration Agreement	p. 4
Localized' or Delocalized Arbitration?	p. 4
The Obligation Not to Apply to a Court or Another Tribunal	p. 5
Terminology: Anti-Suit Injunction	p. 7
Categories of 'Anti-Suit Injunctions' Covered	p. 8
The Development of Anti-Suit Injunctions in Litigation	p. 9
England	p. 9
Historical Development	p. 9
Prerequisites for the Issuance of an Anti-Suit Injunction	p. 11
Personal Jurisdiction	p. 11
Discretion	p. 12
Equitable Right	p. 12
Alternative Forum Cases	p. 14
Single Forum Cases	p. 15
Protective Anti-Suit Injunctions	p. 17
Anti-Anti-Suit Injunctions	p. 17
Legal Right	p. 18
Comity	p. 19
USA	p. 21
Summary	p. 22
Anti-Suit Injunctions Issued by State Courts in International Commercial Arbitration	p. 23
Prerequisites in England	p. 23
Legal Basis	p. 23
Personal Jurisdiction over Addressee of Injunction	p. 24
Breach of the Arbitration Agreement	p. 25
Discretion	p. 26
Vexatious or Oppressive Test?	p. 27
Exercise of Discretion	p. 29
Time of Application	p. 31
Comity	p. 32
Damages more Appropriate?	p. 35
Prerequisites in the USA	p. 37
Switzerland?	p. 40
Legal Basis	p. 41
Parallel Competence	p. 42
Prerequisites for Ordering the Interim Measure	p. 44
Comity or Rechtsschutzinteresse?	p. 46
Incompatibility with Swiss Legal System?	p. 47
Conformity of Anti-Suit Injunctions	p. 48
Compliance with the New York Convention	p. 48
With Respect to Art. II(3)	p. 48
With Respect to Art. V(2)(b)	p. 51
Compliance with the Principle of Competence-Competence	p. 52
Positive Effect of the Principle of Competence-Competence	p. 52
Negative Effect in General	p. 52
Negative Effect in Switzerland	p. 55
Negative Effect in England	p. 55
Negative Effect in the US	p. 56
Competence-Competence and Anti-Suit Injunctions	p. 57
Compliance with the Right of Access to Court	p. 58
Compliance with the Jurisdiction of the Arbitral Tribunal	p. 59
Compliance with Council Regulation (EC) No. 44/2001 or the 1988 Lugano Convention	p. 61
Historical Reasons for the Exclusion of Arbitration	p. 62
Case Law Preceding West Tankers	p. 63
Debate in Legal Doctrine	p. 65
Exclusion of Arbitration	p. 66
Incompatibility Irrespective of Exclusion?	p. 69
Opinion of the Advocate General	p. 71
Criticism of the Advocate General's Opinion	p. 73
Judgement of the European Court of Justice	p. 75
Criticism of the Judgment	p. 75
Practical Consequences	p. 77
Should Arbitration Be Included into the Regulation?	p. 78
Suggested Amendments	p. 79
Views Opposing Amendment	p. 80
Proposed Solution	p. 82
Outlook	p. 83
Domestic Enforcement	p. 84
England	p. 84
Switzerland	p. 86
Enforcement Abroad	p. 87
Service of Anti-Suit Injunctions Abroad	p. 87
Enforcement of Anti-Suit Injunctions Abroad	p. 88
'Indirect Enforcement'	p. 90
In England	p. 90
In Switzerland	p. 92
Limited Effectiveness of 'Indirect Enforcement'	p. 93
Anti-Suit Injunctions Issued by the Arbitral Tribunal	p. 95
Order: Interim or Final Relief?	p. 95
Availability of Interim Relief by the Arbitral Tribunal	p. 98
Legal Basis for Ordering an Anti-Suit Injunction	p. 99
Arbitration Agreement	p. 99
Arbitration Rules	p. 103
Lex arbitri	p. 105
England	p. 106
Switzerland	p. 107
UNCITRAL Model Law Jurisdictions	p. 108
Prerequisites	p. 109
Application by a Party	p. 110
Prima facie Establishment of Jurisdiction	p. 110
Prima facie Establishment of Case or Right	p. 111
Conduct of the Party Allegedly in Breach of the Arbitration Agreement	p. 112
Parties	p. 114
Claims	p. 114
Subject Matter	p. 115
Urgency	p. 116
Substantial Prejudice	p. 117
Proportionality	p. 120
Summary of the Prerequisites	p. 122
Sanctions by the Arbitral Tribunal	p. 122
In General	p. 122
Allocation of Costs as a Sanction?	p. 124
Damages	p. 127
English Case Law	p. 127
US Case Law	p. 128
Arbitral Case Law	p. 128
Under Swiss Law	p. 129
Damages as a Sanction?	p. 130
Contractual Penalties?	p. 131
Astreintes	p. 133
Astreintes in French Litigation	p. 133
No Astreintes by Swiss State Courts	p. 134
Astreintes in Arbitration?	p. 135
Imperium and Jurisdictio	p. 135
Legal Basis	p. 135
Enforcement of Astreintes	p. 139
Effectiveness of Astreintes as a Sanction	p. 141
Criminal Sanctions	p. 141
Adverse Inference	p. 147
Enforcement at the Seat of the Arbitration	p. 148
Contempt of Court	p. 148
State Court Support in Switzerland	p. 149
Recognition and Enforcement Abroad	p. 150
Under the New York Convention?	p. 151
Award	p. 151
Public Policy	p. 154
Under Council Regulation (EC) No. 44/2001 or the 1988 Lugano Convention?	p. 155
Under the Amended Model Law	p. 155
Under Swiss Law?	p. 156
Under English Law?	p. 157
Conclusions	p. 157
Practical Considerations	p. 158
Advisability of Relief by the Arbitral Tribunal	p. 158
Consideration of Practical Effects	p. 158
Effects on the Award?	p. 158
Procedural Order or Award?	p. 160
Anti-Suit Injunctions and 'Third Parties'	p. 163
Orders Against Parties to the Arbitral Proceedings	p. 163
Orders Against Non-Parties to the Arbitral Proceedings	p. 165
By State Courts	p. 165
Naming and Joining Parties	p. 165
Non-Signatories	p. 166
True Third Parties	p. 167
By Arbitral Tribunals	p. 168
Comparison of Anti-Suit Injunctions Issued by State Courts and by Arbitral Tribunals	p. 171
Summary	p. 177
Index of Abbreviations	p. 181
Table of Contents provided by Ingram. All Rights Reserved.

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Anti-suit Injunctions in International Commercial Arbitration

Summary

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Table of Contents

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