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ZUZANA JAHODNÍKOVÁ – MILOŠ OLÍK CYIL 5 ȍ2014Ȏ
arbitration.99 As in many cases previously,100 the Court took as its point of departure
the effectiveness of the law and the position of the Regulation’s efficacy, and tried to
bring a fresh view on the factual circumstances and legal implications of the fact that
arbitration related proceedings fall outside the scope of the Regulation. 101
The implications of the West Tankers case stem from the situation that, if the place
of arbitration has been ordained to be within EU territory, a party seeking an anti-
suit remedy will be more likely to seek a measure hindering parallel proceedings in
the appointed tribunal itself, rather than to apply for it elsewhere. Notwithstanding
the importance of the West Tankers ruling, many have denounced the judgement
as being excessive. The Regulations allocate jurisdiction (power) regardless of the
existence of an actual claim and the motivation (which may or may not be an anti-
suit injunction) behind the conduct of that party.102
In arbitration, a respondent, eager to challenge the tribunal’s jurisdiction can
even ‘torpedo’103 the arbitration, as long as the relevant law grants no priority to the
arbitral tribunal in determining its own jurisdiction. In addition to retaining the least
expeditious court, torpedoing an international arbitration can also lead to forum-
shopping to such an extent that each EU Member State, and generally any state
outside the European Union, would have its own conflict-of-law rules, exceptionally
even an alternative methodology, to determine the law applicable in arbitration
99 According to general opinion, anti-suit injunctions have to be regarded as in personam in nature (See
e.g. Prof. J. D. M. Lew, “Does National Court Involvement undermine the International Arbitration
process?”, reference at supra note 1, p. 514). Therefore the West Tankers decision was received with
mixed feelings, since the expression “preventing a court of a Member State from ruling on the very
applicability of the Regulation” gives an indication that the injunction is aimed at the foreign court’s
determination of its own jurisdiction and on its capacity to do so. In spite of these observations,
as some authors note, in West Tankers the Court considered irrelevant the fact that the anti-suit
injunction is addressed to the defendant and not directly to the foreign court. (G. Carducci, supra note
38, p. 180) On the newest developments in the West Tankers saga, and the jurisdiction of an arbitral
tribunal to award damages for breach of an arbitration agreement by bringing proceedings before a
national court see: A. Dickinson, “And the winner is…West Tankers (again)”, Conflict of Laws. News
and Views in Private International Law (13 April 2012), available at:
and-the-winner-is-west-tankers-again/; accessed: 4 April 2014.
100 The establishment and the subsequent evolution of EU law was predominantly shaped by the existence
of certain principles, one of which is the principle of effectiveness. This ensures per se the effective
application of EU law and was held to be a general legal and constitutional principle of EU law. See:
J. Bengoetxea, “Is Direct Effect a General Principle of European Law?” in U. Bernitz, J. Nergelius,
C. Garner, General Principles of EC Law in a Process of Development: Reports from a Conference in
Stockholm, (Kluwer Law International, 2008), p. 21.
101 Actually, the effectiveness argument is to be expected in matters covered by the Regulations, such
as jurisdiction in tort (the claim brought before the Tribunale di Siracusa in the West Tankers case),
but appears surprising in the field of arbitration which is excluded by the Regulations and in which
European law has not unified the rules of conflict of jurisdictions. G. Carducci, supra note 38, p. 177.
102 Ibid, p. 181.
103 Within the sphere of EU law, an action aiming to stop the commencement of parallel proceedings is
often referred to as the “Italian torpedo”.