West Tankers Reloaded – Vollstreckung eines feststellenden Schiedsspruchs zur Abwehr der Vollstreckung einer zukünftigen ausländischen Gerichtsentscheidung (West Tankers Reloaded – Enforcement of a Declaratory Arbitral Award to Block the Enforcement of a Future State Court Judgment)
Praxis des Internationalen Privat- und Verfahrensrechts (IPRax), Vol. 32 , No. 3, pp. 264-272, May 2012
Posted: 6 Apr 2012 Last revised: 2 Sep 2012
Date Written: February 1, 2012
Case note on: High Court of Justice (Commercial Court), 6.4.2011 –  EWHC 829 – and Court of Appeal, 24.1.2012 –  EWCA Civ 27, West Tankers Inc v. Allianz Spa et al.
After the European Court of Justice’s decision in West Tankers and the Court of Appeal’s conclusions in National Navigation, anti-suit injunctions as well as declaratory decisions by the state courts at the seat of the arbitration regarding the existence and validity of the arbitration agreement are either not available or not effective in preventing torpedo actions frustrating the arbitration agreement. In light of this unsatisfactory status quo, after having succeeded in the arbitration proceedings in London (declaring West Tankers’ non-liability for the damage under dispute), West Tankers sought to enforce the arbitral award in England so as to prevent recognition and enforcement of a future Italian judgment on the merits. Whether an arbitral award constitutes a ground for refusing a declaration of enforceability of a foreign decision under Artt. 34, 45 Brussels I Regulation is, however, disputed. The High Court as well as the Court of Appeal argued that the issue was not decisive for the decision while it clearly was. This is at last proven by the fact that the High Court implicitly determined the issue by upholding the declaration of enforceability of the arbitral award. This article scrutinizes the High Court’s decision and the Court of Appeal’s dismissal of the appeal in light of the interface of the Brussels I Regulation and arbitration. Furthermore, it discusses the crucial question whether an arbitral award may constitute a ground for refusing a declaration of enforceability under the Brussels I Regulation and whether such a ground would be compatible with the ECJ’s decision in West Tankers.
Please note that this is an article published in German.
Keywords: West Tankers, Brussels I Regulation, Arbitration, Enforcement of Arbitral Awards, Brussels I Reform
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