![handle is hein.journals/jloildte10 and id is 1 raw text is:
Journal of International Dispute Settlement, 2019, 10, 1-22
doi: 10.1093/jnlids/idy001
Advance Access Publication Date: 26 March 2018
Article
The Right to Be Unheard: Recognition and
Enforcement of Anti-Suit Injunctions Issued by
Arbitrators in the EU
Pawel Marcisz* and Aleksandra Orzel-Jakubowska**
ABSTRACT
The article discuses recognition and enforcement of anti-suit injunctions issued by ar-
bitral tribunals in the EU, taking into account limitations on arbitrators' power to issue
the injunctions as well as their legal effects in various jurisdictions. We critically evalu-
ate the consistency of the CJEU's approach to anti-suit injunctions as presented in
West Tankers and in Gazprom. To this end, we compare effects of anti-suit injunctions
from state courts and these from arbitral tribunals on the efficiency of EU law and the
fundamental rights that it protects. Special regard is paid to the right to legal protection
as enshrined in Article 47 of the Charter of Fundamental Right.
1. INTRODUCTION
Several months before the Court of Justice of the European Union (CJEU) rendered
a judgment in West Tankers,'Thomas Raphael wrote:
If the European Court of Justice does hold that the English Court cannot grant
anti-suit injunctions to enforce an arbitration clause, one obvious alternative option
for the injunction claimant is to seek an analogous order from the arbitrators.
This author also noted that there was a growing number of decisions reported where
arbitrators have granted anti-suit injunctions.3
* University of Warsaw, Faculty of Law and Administration, Department of European Law. Email:
p.marciszcuw.edu.pl
** University of Warsaw, Faculty of Law and Administration, Department of Civil Procedure. Email:
a.orzelcwpia.uw.edu.pl. The research presented in this article was conducted at LSE during the ETIUDA
scholarship (No DEC-2016/20/T/H5/00408) financed by the Polish National Science Centre. I would like
to thank Professor Jan Kleinheisterkamp for his kind support in conducting my research at LSE.
1 CJEU Case C-185/07 Allianz SpA, Generali Assicurazioni Generali SpA v West Tankers Inc. [2009]
ECLI:EU:C:2009:69. See also H Seriki, Injunctive Relief and International Arbitration (Informa Law 2015)
55ff.
2 T Raphael, The Anti-Suit Injunction (OUP 2008) 285 (512.26).
3 ibid 197, ¶7.41. Some authors use the term 'antisuit order' to refer to an anti-suit injunction issued by an
arbitral tribunal, to distinguish them from anti-suit injunctions issued by state courts. But in this article, we
© The Author(s) 2018. Published by Oxford University Press. All rights reserved.
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