XXth CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW FUKUOKA July 22-28, 2018

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1 XXth CONGRESS OF THE INTERNATIONAL ACADEMY OF COMPARATIVE LAW FUKUOKA July 22-28, 2018 ANTI-SUIT INJUNCTIONS IN ARBITRAL AND JUDICIAL PROCEDURES TO: NATIONAL REPORTERS FROM: PROF. FILIP DE LY, ERASMUS SCHOOL OF LAW, ROTTERDAM, GENERAL REPORTER Introduction Our topic which will be the subject of Your national reports and my general report will be the subject of our discussions in July 2018 in Fukuoka. It will result in a book on the topic published in the Ius Comparatum series of the International Academy of Comparative Law published by Springer. To meet the requirements of the series, our book should not be more than approximately 200 to 400 pages (110,000 to 220,000 words). As we have 21 national reporters (see the list attached), a national report should not be longer than 17 printed pages or 9350 words, the remainder being reserved for the general report, the questionnaire and tables. However, as the topic may lead to shorter national reports form civil law countries, we may adjust the maximum length in view of any comments You may have. Please inform me whether You anticipate to submit a shorter national report than 9350 words so that more pages might be allocated to national reporters, for instance from common law countries, who may need more space to adequately cover the topic. National reports should be either in English or in French. I anticipate to write the general report in English. To prepare the general report as well as the July 2018 Conference, Your national report is due by January 15, Our topic on anti-suit injunctions is not only interesting but also challenging from a comparative law perspective as anti-suit injunctions are a well known institution in the common law but by and large absent in civil law jurisdictions. Thus, the questionnaire that follows is only provided for guidance and not intended to prescribe a structure to Your national report. However, in order to prepare the general report, You are requested to address all questions somewhere in Your report but otherwise You are free to provide Your own narrative if You so wish.

2 Questionnaire 1. Judicial Procedures Litigation 1.1 Please describe briefly the historical developments of anti-suit injunctions in Your jurisdiction and whether they are based on statutory or case law. 1.2 Is there a distinction between anti-suit injunctions in domestic and international litigation? 1.3 What different categories of anti-suit injunctions exist in Your jurisdiction? Do anticipatory anti-suit injunctions exist to deal with threatening or prospective litigation in a different forum? Do anti-enforcement injunctions also exist? 1.4 In what types of procedures are anti-suit injunctions available? Only in civil adversarial cases or also in other cases of a public law or non-contentious nature? Are they only available in contract cases or also in other civil cases? 1.5 What are the requirements to obtain an anti-suit injunction and do they differ depending on the category involved? 1.6 Are there situations where an anti-suit injunction can never be obtained? Can sovereign immunity provide an absolute bar to obtain an anti-suit injunction? What are the jurisdictional requirements to obtain jurisdiction over a foreign respondent in relation to an application for an anti-suit injunction? Are there international conventions or other international rules that prevent or impact upon applications for anti-suit injunctions. National reporters from EU member states may briefly consider the impact in their jurisdictions of Gregory Paul Turner/Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA (CJEU April 27, 2004, Case C-159/02, ECLI:EU:C:2004:228, ECR 2004, I, 3565). 1.7 What are the policy reasons behind anti-suit injunctions and how do they influence the decision making process in issuing them? 1.8 What is the attitude to parallel foreign proceedings where an anti-suit injunction is obtained or is sought (anti-anti suit injunctions)? 1.9 If not much is to be reported in Your jurisdiction regarding the previous questions, does Your jurisdiction have alternative procedural or substantive devices which may have similar functions as anti-suit injunctions i.e., to obtain a court order against a respondent prohibiting the respondent to start or continue court proceedings in another forum? Can interim relief proceedings or proceedings on the merits be instituted to obtain such relief, for instance for breach of a forum selection clause. If Your jurisdiction has a tradition of anti-suit injunctions, are alternative remedies with equivalent effects available and are they used and why or why not?

3 2. Arbitration Proceedings 2.1 Please describe briefly the historical developments of anti-suit injunctions regarding arbitration proceedings in Your jurisdiction and whether they are based on statutory or case law. 2.2 Is there a distinction between anti-suit injunctions in domestic and international arbitrations? 2.3 What different categories of anti-suit injunctions pertaining to arbitration exist in Your jurisdiction? Do anticipatory anti-suit injunctions exist to deal with threatening or prospective litigation in a different forum? Do antienforcement injunctions also exist? 2.4 What are the requirements to obtain an anti-suit injunction regarding arbitration and do they differ depending on the category involved? 2.5 Are there situations where an anti-suit injunction can never be obtained? Can sovereign immunity provide an absolute bar to obtain an anti-suit injunction? What are the jurisdictional requirements to obtain jurisdiction over a foreign respondent in relation to an application for an anti-suit injunction pertaining to arbitration? Are there international conventions or other international rules that prevent or impact upon applications for antisuit injunctions regarding arbitration. National reporters from EU member states may briefly consider the impact in their jurisdictions of the West Tankers case (CJEU Februari 10, 2009, Case C-185/07, Allianz SpA en Generali Assicurazioni Generali SpA/West Tankers Inc., ECLI:EU:C:2009:69, ECR 2009, I, 663) and the ensuing amendment to the Brussels Regulation in the recasted Brussels Regulation. 2.6 What are the policy reasons behind anti-suit injunctions pertaining to arbitration and how do they influence the decision making process in issuing them? 2.7 What is the attitude to parallel foreign proceedings where an anti-suit injunction is obtained or is sought (anti-anti suit injunctions)? 2.8 If not much is to be reported in Your jurisdiction regarding the previous questions, does Your jurisdiction have alternative procedural or substantive devices which may have similar functions as anti-suit injunctions related to arbitration i.e., to obtain a court order against a respondent prohibiting the respondent to start or continue court proceedings in another forum in violation of an arbitration agreement? Can interim relief proceedings or proceedings on the merits be instituted to obtain such relief for breach of a forum selection clause. If Your jurisdiction has a tradition of anti-suit injunctions, are alternative remedies with equivalent effects available and are they used and why or why not? 2.9 The subquestions above dealt with applications for anti-suit injunctions filed with national courts. Can anti-suit injunctions also be filed with arbitral tribunals and can You report on cases and requirements regarding these arbitral anti-suit injunctions in Your jurisdiction. In this respect, You may

4 be referred to the Gazprom case of the Court of Justice of the European Union (May 13, 2015, Case C-536/13, 'Gazprom' OAO v Lietuvos Respublika, ECLI:EU:C:2015:316) The subsections above dealt with the relationship between courts and arbitration regarding anti-suit injunctions. The final question deals with the relationship between arbitral tribunals in cases of parallel arbitrations. Are arbitral anti-suit injunctions available in these cases and is there something to report on them in Your jurisdiction?

5 LIST OF NATIONAL REPORTERS Bělohlávek Alexander (Czech Republic) and/or Jankowski Janusz (Poland) Cieslak Slawomir (Poland) Villu Kõve (Estonia) Aude Fiorini (Scotland) Kuan-Ling Shen (Taiwan) Gary F. Bell (Singapore) Alain Prujiner (Canada Civil Law) Catherine Piche (Canada Common Law) Iina Tornberg (Finland) Prof. Elsabe Schoeman (South Africa) Hakeem Seriki (England) Aldo Berlinguer (Italy) Michael Komuczky (Austria) Marcelo Ferro (Brazil) Etsuko Sugiyama (Japan) Nikitas Hadjimihail (Cyprus) Michael Douglas (Australia) Anna Mantakou (Greece) Wolfgang Hau (Germany) Stacie I. Strong (USA) Talia Einhorn (Israel) István Varga (Hungary)