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Courts Ensuring Compliance with Arbitration Clauses: the Position in English Law
Professor of Private Law and Civil Justice, University of Cambridge
The English courts will uphold arbitration agreements using a range of remedies or devices. The purpose of this article is to examine these various responses. These responses concern the central allegation that (i) there is a valid arbitration agreement to which the court needs to defer (by the stay of English judicial proceedings); or (ii) the English court should directly support the arbitration agreements by the grant of negative relief (an injunction), a declaration, or compensation (damages). The possibility of a foreign court making a contradictory decision concerning the arbitration clause is also mentioned. It will also be noted that under English arbitration law the arbitral tribunal has power to issue an anti-suit order, although such an order lacks the coercive potency of a court injunction. The main way in which an arbitration agreement can be upheld is for the court simply to stay English judicial proceedings if the latter have been brought by a party to the arbitration agreement and those proceedings involve breach of that agreement. The same method is endorsed by the New York Convention (1958) among Contracting States. But the Common Law is more robust by providing the so-called «anti-suit injunctions». These are in fact aimed not at a foreign court (or arbitral tribunal) but at the foreign litigant who has failed to comply with the arbitration clause. However, the European Court of Justice in Allianz SpA v. West Tankers (2009) held that English courts can no longer issue these injunctions within the European juridical zone (this leaves intact, however, the English courts’ power to issue injunctions where the oMending litigant has commenced proceedings outside this European zone). Another remedy for breach of an arbitration agreement is damages, which in England can only be compensatory, as distinct from punitive.
Keywords: foreign civil process; English civil process.
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Information about the author
Neil Andrews (Cambridge) – Professor of Private Law and Civil Justice, University of Cambridge (The Old School, Trinity Ln., Cambridge CB2 1TN, e-mail: enquires@ law.cam.ac.uk).