ANTI-SUIT ANTI-SUIT INJUNCTIONS IN INJUNCTIONS IN

POLANDPOLAND

Marcin Ciemiński

Warsaw, 17 June 2011

AGENDA

Anti-suit injunctions – general remarks

Anti-suit injunctions issued in Poland

Practical impact of Polish anti-suit injunctions

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ANTI-SUIT INJUNCTIONS – GENERAL REMARKS

Common law instrument – against injustice of abusive manipulation of rules on venue:

• Supreme Court Act of 1981, section 37 (1), which states that the High Court may by order grant an injunction in all cases in which it finds it just and convenient to do so;

• Section 44 of the English Arbitration Act of 1996: a court is also empowered to grant such injunction in connection with arbitration proceedings

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ANTI-SUIT INJUNCTIONS – GENERAL REMARKS cont’d

Recognised in some Roman law countries, e.g. the Netherlands:

• abuse of action (Article 3:13 Dutch Civil Code) or tort (Article 6:162 Dutch Civil Code);

• conditions: valid arbitration agreement and instigation of proceedings only to harm the other party

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ANTI-SUIT INJUNCTIONS IN POLAND – INTRODUCTION

Foreign anti-suit injunction cases with Polish elements:

• Welex AG v Rosa Maritime Limited, the “Epsilon Rosa”

Anti-suit injunction concerning proceedings before the District Court in Szczecin

• Elektrim case

English court granted a final anti-suit injunction restraining Vivendi from continuing proceedings in Florida (alleging fraud and breach of fiduciary duties)

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CAN ANTI-SUIT INJUNCTIONS BE ISSUED BY POLISH COURTS?

Competence of the state courts to support arbitration (e.g. interim measures)

Conditions: plausible claim, permissible types of injunctions and legal interest

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CAN ANTI-SUIT INJUNCTIONS BE ISSUED BY POLISH COURTS? cont’d

Claim to be secured by an anti-suit injunction?

• Claim to have the dispute heard by an arbitral tribunal

• The underlying claim

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CAN ANTI-SUIT INJUNCTIONS BE ISSUED BY POLISH STATE COURTS? cont’d

Is an anti-suit injunction permissible?

• Not possible with regard to monetary claims

• Non-monetary claims – any means the court deems appropriate

• Possible conservatory measures:

– Suspension of pending enforcement proceedings

– Suspensions of proceedings pending before the registry court

– Prohibiting a party from taking certain actions

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CAN ANTI-SUIT INJUNCTIONS BE ISSUED BY POLISH STATE COURTS? cont’d

What is the legal interest protected by an anti-suit injunction?

• Exists “when lack of a conservatory measure will be detrimental to the aim of the proceedings or will prevent execution of the award issued in such proceedings”;

• What is the parties' interest in obtaining an anti-suit injunction?

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FUNDAMENTAL PRINCIPLES OF ARBITRATION PROCEEDINGS AND THE

PUBLIC POLICY Is an anti-suit injunction contrary to the kompetenz-kompetenz

principle?

• The court should conclude that it is at least plausible that the arbitral tribunal has jurisdiction.

Is an anti-suit injunction contrary to the right to a fair trial and access to justice?

• Judgement of the Supreme Court, dated 11 May 2007, I CSK 82/07 – in the arbitration agreement, the parties limit their public right – access to court and a fair trial;

• O.T. Africa Line Ltd v. Hijazy and others, "The Kribi case"- The court's measure ordering the party to preserve the appropriate forum does not infringe Art. 6 of the ECHR.

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CAN ANTI-SUIT INJUNCTIONS BE ISSUED BY POLISH ARBITRAL TRIBUNALS?

Arbitral tribunals are competent to issue conservatory measures

Unlimited scope of conservatory measures

Is a legal interest required?

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PRACTICAL IMPACT OF ANTI-SUIT INJUNCTIONS IN POLAND

International anti-suit injunctions re. Polish arbitration – within EU

ECJ decision in West Tankers

International anti-suit injunctions re. Polish arbitration – outside of EU or Lugano Convention States

e.g. Shashou v Sharma decision – injunction to restrain proceedings in India

Anti-suit injunctions protecting foreign arbitration – Article 1166 sec. 2 of the Code of Civil Procedure

Domestic anti-suit injunctions?

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ANTI-SUIT INJUNCTIONS IN ANTI-SUIT INJUNCTIONS IN POLANDPOLAND