401 / 532
385
AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
An anti-suit injunction could amount to a judicially inflicted denial of justice in
connection with arbitration and related proceedings. As some rightly argue, “even in
the absence of evidence of collusion with the executive, the mere granting of relief
by a State’s court at the request of its executive, which has the effect of nullifying
the arbitration agreement, amounts to a denial of justice and a breach of universal
international arbitration law principles by the court.”
86
Returning to the subject-
matter, a decision of the court barring a party from initiating arbitral proceedings, or
carrying on with them, could meet the characteristics of the abovementioned denial.
According to Schwebel, when a domestic court, which is an organ of the State in
the eyes of international law, blocks access to arbitration through issuance of an anti-
suit injunction, that too constitutes a denial of justice for which the State of which the
court is part (whether or not the judicial branch be independent) is internationally
responsible. However, when a domestic court, an organ of the State in the State in the
eyes of international law, blocks access to arbitration through issuance of an anti-suit
injunction, that too constitutes a denial of justice for which the State of which the court
is part (whether or not the judicial branch be independent) is internationally responsible.
Such action may equally be addressed as a violation of international public policy.
87
Not every interference, however, could be targeted for its nature as a denial of
justice since this possibility can arise only when the decision would be: “so outrageous
that no reasonable court could have arrived at it, or there was a fundamental breach
of due process,
such as where the court refused to hear a party or made or allowed
discriminatory remarks to be made about them”.
88
Therefore, one may argue that anti-arbitration injunctions will fulfil the conceptual
framework of such conduct given that it offers apparent and unambiguous proof of an
action launched against arbitral proceedings.
4.6 The EU Approach: The Correct Step Forward?
It is rather difficult to find a court that has assessed an anti-suit injunction
from a conceptual point of departure. The Court of Justice of the European Union
(“
CJ EU
”) achieved a defined, succinct yet radical blow against the threat posed by
anti-suit injunctions. But why is it important to assess the EU’s take on anti-suit
injunctions? The answer to this question is relatively straightforward. Once parties
seek to make use of anti-suit injunctions, while inside the territory of the Union,
they have to observe the particularities imposed by the
sui generis
legal order of this
supranational body.
86
Ibid
, p. 489.
87
S. M. Schwebel,
Justice in International Law: Further Selected Writings
, (Cambridge University Press,
2011), p. 170. The decision of the Piraeus Court of Appeal can be given as one of the decisions where
this aspect was taken into a count. The court found that an anti-suit injunction had violated Greek
ordre public
for trying to deprive the claimant in the Greek proceedings of his constitutional and ECHR
rights of free access to justice. See: H. Meidanis, “
Three Recent Greek Cases on Brussels Convention
”,
Yearbook PIL VIII (2006): pp. 281-288.
88
R. Garnett,
supra
note 26, p. 490.