Transcript Document

The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb
- AUSTRIAN – POLISH TWIN CONFERENCE INTERNATIONAL COMMERCIAL ARBITRATION
Warsaw, 17 June 2011
The Relationship between Anti-Suit Inunctions & Arbitration
Barbara Helene Steindl
Brauneis Klauser Prändl Rechtsanwälte GmbH, Attorneys at law
(Vienna)
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

Setting forth the different approaches – Decisions
in Equity or Law
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What are the underlying policies?
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ASI is equitable relief – the court is supposed to adjust decisions
strictly in law that may be unfair /too harsh
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When deciding on an equitable relief – the equity courts have
much discretion as to what conditions to take into account to
achieve fairness
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Interim relief in civil law countries mostly no equitable relief –
preconditions in law are interpreted acc. to rules of interpretation –
thus, “discretion” very limited
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

Setting forth the different approaches – Decisions
in Equity & Law
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Notwithstanding: civil law countries often deny enforcement of ASI
and criticize them by alleging violation of international law
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Are the underlying policies strictly contradictory?
UK courts restraining a party from proceeding in a non-U.K.
country does not flow from “any pretension to the exercise of
judicial . . . rights abroad,” but rather from the fact that the
enjoined party is subject to the in personam jurisdiction of the U.K.
court. Lord Portarlington v. Soulby (1834)
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

The origin of ASI & indication of the concept
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The origin of equity / ASI
Distinction btw law and equity is accident of history
King’s law was enforced by courts of law
If changes were not quick enough/decisions unfair – appeal to the
King’s mercy
King delegated appellate function to Chancellor (clergy) – Court of
Chancery
Rivalry btw courts of law/courts of Chancery – forum shopping
Chancery orders prohibited court of law’s decisions [contempt of
court] – birth of ASI
Chief justice issued habeas corpus writs for release – birth of antiASI
i.
ii.
iii.
iv.
v.
vi.
vii.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

The origin of ASI & indication of the concept
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Indication of the concept
ASIs may be rendered as interim or permanent injunctions
i.
ii.
UK courts grant ASIs (even) if (i) main proceedings not pending in
UK, (ii) equitable – ie. necessary to prevent injustice, (iii) UK court
has a strong interest in the case &(iv) non-UK proceedings
vexations and oppressive. US courts grant ASIs under similar
preconditions.
iii.
Grounds for anti-suit injunction may be abusive litigation tactics,
more precisely the breach of arbitration agreement [Guerrilla
Tactics]
iv.
Support for anti-suit injunctions runs counter ltd. court involvement
in arbitration
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

The origin of ASI & indication of the concept
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Indication of the concept

Also, in US, anti-anti-suit injunctions may be available
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Reaction of arbitrators to anti-arbitration injunctions
Himpurna California Energy total (Bermuda) v Republic of
Indonesia (anti-arbitration injunction with per-diem contempt fines
by Jakarta [place of arbitration] District Court,1999 [overturned])
Majority arbitrators resisted threat of criminal proc./contempt fines
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb
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Is Europe leaning towards equity now?
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Turner v Grovit [2005] – ECJ: Brussels I precludes EU courts from
granting anti-suit injunctions restraining from bringing/continuing
parallel court proceedings within EU
West Tankers / Starlight Shipping Co v. Ta Ping Insurance Co Ltd
[2007]. UK courts, however, continued to issue anti-suit
injunctions where poa in UK [reason of competitiveness]
Proposal for new Regulation after Brussels I allows for ltd. anti-suit
injunctions – Europe leaning towards equity?
EC considered policy issue regarding EU as poa
Policy issue: Is it time to fully commit to free movement of jud.
decisions & recognition?
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

Is Europe leaning towards equity now?
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EC: [New proposal] obliges a court seized of a dispute to stay
proceedings if its jurisdiction is contested on the basis of an
arbitration agreement and an AT has been seized of the case or
court proceedings relating to the arbitration agreement have been
commenced in the Member State of the seat of the arbitration
This does not fully solve the problem.
Critical EC statement: Member States cannot by themselves ensure that
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arbitration proceedings in their Member State are properly coordinated with
court proceedings going on in another Member State because the effect of
national legislation is limited by the territoriality principle.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2011 ICC
Arbitration Rules?
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CONSERVATORY AND INTERIM MEASURES Article 2328(1)
Unless the parties have otherwise agreed, as soon as the file has been transmitted
to it, the Aarbitral Ttribunal may, at the request of a party, order any interim or
conservatory measure it deems appropriate. The Aarbitral Ttribunal may make the
granting of any such measure subject to appropriate security being furnished by the
requesting party. Any such measure shall take the form of an order, giving reasons,
or of an Aaward, as the Aarbitral Ttribunal considers appropriate.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2011 ICC
Arbitration Rules?

CONSERVATORY AND INTERIM MEASURES Article 2328(2)
Before the file is transmitted to the Aarbitral Ttribunal, and in appropriate
circumstances even thereafter, the parties may apply to any competent judicial
authority for interim or conservatory measures. The application of a party to a judicial
authority for such measures or for the implementation of any such measures ordered
by an Aarbitral Ttribunal shall not be deemed to be an infringement or a waiver of the
arbitration agreement and shall not affect the relevant powers reserved to the
Aarbitral Ttribunal. Any such application and any measures taken by the judicial
authority must be notified without delay to the Secretariat. The Secretariat shall
inform the Aarbitral Ttribunal thereof.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2011 ICC
Arbitration Rules?
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Emergency Arbitrator, Article 29
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Power of Emergency Arbitrator
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Power of the AT after Emergency Arbitrator
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2010 UNCITRAL
Arbitration Rules?
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INTERIM MEASURES OF PROTECTION, Article 26
1. The arbitral tribunal may, at the request of a party, grant interim measures.
2. An interim measure is any temporary measure by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal
orders a party, for example and without limitation, to:
(a) [ ]
(b) Take action that would prevent, or refrain from taking action that is likely to
cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;
(c) [ ] or (d) [ ].
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2006 Vienna
Arbitration Rules?
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Interim measures of protection, Article 22
1. Unless otherwise agreed by the parties, the sole arbitrator (arbitral
tribunal) may, at the request of a party order any party, after hearing such
party, to take such interim measure of protection as the sole arbitrator (arbitral
tribunal) may consider necessary in respect of the subject matter of the dispute,
as otherwise the enforcement of the claim would be frustrated or considerably
impeded or there is a danger of irreparable harm. [ ] The parties are obliged to
comply with such orders, whether or not they are enforceable by State
courts. [ ]
3. Unless the parties have agreed otherwise, the measures are to be
substantiated. [ ]
5. The sole arbitrator (the presiding arbitrator) or, if he is prevented, another
arbitrator, shall upon the motion of a party, confirm the unappealability and
enforceability of the measure on a copy of the measure.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May ASIs be granted under the 2010 Lewiatan
Arbitration Rules?
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Interim and Conservatory Measures, § 42
Unless the parties’ agreement provides otherwise, the arbitral tribunal may, upon a
motion of a party, order the other party to comply with any orders
regarding interim or conservatory measures. Issuance of an order may
depend on provision of an adequate security by the applicant.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May judges sitting in AUT render ASIs?
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§ 578 AUT CPC - Court Intervention
In matters governed by this Part, no court shall intervene except
where so provided in this Part.
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§ 585 AUT CPC - Arbitration Agreement & Interim Measures
by Court
It is not incompatible with an arbitration agreement for a party to request, before or
during arbitration proceedings, from a court a preliminary or protective measure
and for a court to grant such a measure.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May judges sitting in AUT render ASIs?
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§ 584 AUT CPC – Arbitration Agreement & Claims before Court
(1) A [AUT] court before which an action is brought in a matter which is the subject
of an arbitration agreement shall dismiss the claim unless [R enters merits
without objecting] to this effect. This rule does not apply if the court finds
[arbitration agreement [nonexistent, incapable of being performed]. [ ]
(3) No further legal action relating to the claim shall be brought before a
court or an arbitral tribunal if arbitration proceedings are pending. An action
brought in the same matter shall be dismissed. This does not apply if an
objection contesting the arbitral tribunal’s jurisdiction has been raised before the
arbitral tribunal no later than the time at which the merits of the case are entered
and a decision of the arbitral tribunal thereon cannot be obtained within a
reasonable period of time.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May judges sitting in AUT render ASIs?
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§ 578 AUT CPC - Court Intervention
In matters governed by this Part, no court shall intervene except where so provided
in this Part.

585 AUT CPC - Arbitration Agreement & Interim Measures by
Court
It is not incompatible with an arbitration agreement for a party to request, before or
during arbitration proceedings, from a court a preliminary or protective measure
and for a court to grant such a measure.
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May judges sitting in AUT render ASIs?
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Basis for interim measures: §§ 378 – 382a Austrian Enforcement
Act
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AUT interim measures: said to aim at the protection of legal
positions against actions violating or frustrating such position
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Although the law’s wording does not point in either direction - case
law and scholars find that purely procedural rights may not be
secured by AUT interim measures
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May judges sitting in AUT render ASIs?
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Case law and scholars find that interim measures may not protect
mere “legal sphere” or the judicial enforcement of a claim
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Interim measure argued to be tied to substantive claim
Based on the constitutional principle of separation of powers in
AUT, AUT interim measures may not interfere with the “area of
competence” of other courts
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Could § 381 AUT EA allows for ASI?
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Could § 382 AUT EA which exemplarily lists the allowed security
measures be employed?
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Is there room for creative argument?
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May arbitrators sitting in AUT render ASIs?
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§ 593 AUT Code of Civil Procedure
Section 593 - Power to Order Interim or Protective Measures
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request
of a party, and after having heard the other party, order such interim or protective
measures against the other party as the arbitral tribunal may consider necessary in
respect of the subject-matter of the dispute if otherwise the enforcement of a
claim would be frustrated or materially hampered, or if there would be a danger of
irreparable damage. [ ]
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

May arbitrators sitting in AUT render ASIs?
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§§ 578, 593 AUT Code of Civil Procedure
§ 593 (3): At the request of a party, the interim or protective measure shall be
enforced by the district court [Bezirksgericht] [ ]. If the measure provides for a
means of protection unknown to domestic law, the court shall, upon request and
after having heard the respondent, apply such other means of protection of domestic
law which most closely approximates the means ordered by the arbitral tribunal. In
doing so, it may, upon request, couch the means ordered by the arbitral tribunal in
different terms in order to ensure that its purpose is implemented.
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Arguments supporting that arbitrators sitting in AUT may render
anti-suit injunctions
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

In view of this – How to act?
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Consider providing against parallel proceedings in the arbitration
clause
Himpurna arbitration clause [UNCITRAL ad hoc / Indonesian civil code]: “[ ] In
addition, the Parties agree that no Party shall have any right to commence or
maintain any suit or legal proceeding concerning a dispute hereunder until the
dispute has been determined in accordance with the arbitration procedure provided
herein and then only for enforcement of the award rendered in such arbitration.“
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Request a stay of the parallel court proceedings
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Assess claiming damages
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Draw negative inferences if arbitral anti-suit injunction not
respected
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The Relationship between ASI & Arbitration
Presentation RA Mag. Barbara Helene Steindl LL.M. (Columbia) MCIArb

In view of this – How to act?
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Support creative argument for an anti-suit injunction by courts or
ATs – be courageous, matters are rarely carved in stone
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Lobby for rule stipulating duty to arbitrate in good faith / pursue &
further arbitration in your country’s Arbitration Act. [Problem
procedural agreement in AUT]
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Austrian – Polish Twin Conference
Thank you very much for your attention.
RA Mag. Barbara Helene Steindl LL.M. MCIArb
- bkp Brauneis Klauser Prändl Rechtsanwälte GmbH
Bauernmarkt 2, A-1010 Vienna
T + 43.1.532 12 10 14
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