An anti-suit injunction to protect a non-existent arbitration
The Court of Appeal of England and Wales ruled last month that where parties have entered into an arbitration agreement, one party can obtain an anti-suit injunction to prevent the other party from initiating proceedings in a foreign court, even where no arbitration is underway or indeed even contemplated.
In AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, the claimant was a Kazakh subsidiary of a US energy company and operator under a concession agreement with the Kazakh owner, a company deriving its rights from the State. In an earlier dispute, the Kazakh Supreme Court had ruled that the arbitration clause (providing for a seat in Londo [...]
Jivraj v. Hashwani – Are Arbitrators Employees?
One of the key issues that now awaits the decision of the U.K. Supreme Court in Jivraj v. Hashwani is whether there is a contract between the parties and the arbitrators, such that the arbitrators may be considered “employees” of the parties (and thereby subject to the law prohibiting discrimination by employers)?
If there is such an “employment” contract, this would be one in which:
• the “employer” cannot give instructions as to how the “employee” is to work or what outcome he is to achieve;
• the “employer” cannot remove the “employee” without an order of the Court;
• the “employee” is immune from suit; and
• the “employee” owes a duty to act [...]
The Supreme Court of Canada: Pro-Arbitration No More
Anyone considering Canada as the seat of an arbitration or as one among several jurisdictions where recognition and enforcement proceedings could be commenced should pay close attention to the Supreme Court of Canada’s March 18 decision in Seidel v. TELUS Communications Inc., 2011 SCC 15, which appears to mark a philosophical shift in Canadian arbitration law that is as significant as it was unexpected. For foreign practitioners, the key aspects of the decision are: i) the effective abandonment of an interpretive presumption—adopted by the Court in 2003—that a matter is arbitrable unless a statute expressly provides otherwise; ii) the suspicion as to arbitration’s ability to provide [...]
Oklahoma’s “Save Our State Amendment” and Related Legislative Developments in the United States
Recent legislative developments in Oklahoma, and a few other U.S. states, reflect a growing mistrust of international and foreign law and legal systems. These proposed statutes and constitutional amendments are one aspect of parochial backlash in the United States and elsewhere against developments in international law and dispute resolution over the past decades. There are substantial doubts about the constitutionality of these legislative proposals under the U.S. Constitution, but they may prove to be the source of substantial mischief. For the moment, these legislative developments are more in the nature of eccentric curiosities than anything else. They nonetheless warrant careful mon [...]
There’s Life In The Anti-Suit Yet
- By Sophie Lamb, Debevoise & Plimpton LLP,
for YIAG
Having had their wings clipped by the European Court of Justice in West Tankers, the English courts have recently confirmed that there is life in the anti-suit injunction yet. In AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2010] EWHC 772 (Comm), Burton J granted anti-suit relief to restrain litigation in Kazakhstan even in the absence of any actual or intended arbitral proceedings.
Various disputes arising in connection with a twenty year concession agreement led, despite the existence of an arbitration agreement, to several sets of proceedings in the courts of Kazakhstan. One suit involved allegations by UST-Kamenogorsk Hydropower Plant JSC (“JSC”) th [...]
