‘I. Procedural background

1. The Parties are currently engaged in the present arbitral proceedings and in state court proceedings ... [Claimant 1] claimsinter alia that it rightfully terminated the Licensing Agreement and seeks declaratory relief to that effect. [Claimant 2] was subsequently joined to the arbitral proceedings on the basis of [Respondent]’s request for joinder … [Claimant 2] understood this request as an offer to join the arbitration … and accepted it. Respondent gave as reason for the joinder that [Claimant 2] and not [Claimant 1] was the proper party to the Licensing Agreement. [Claimant 1] confirmed … that it had no objection to [Claimant 2] joining the arbitration as Claimant 2.

2. … a few weeks after the commencement of the arbitration, [Respondent] filed a complaint before the [state] court … directed against [Claimant 1] … and requesting a declaratory decree that the termination of the Licensing Agreement and the Dealer Contract … is null and void. Simultaneously, [Respondent] requested an ex parte restraining order that the defendants refrain from taking any action based on the termination notice of the Licensing Agreement. A Temporary Restraining Order was granted … and is still in effect as of today. …

3. In the course of the Initial Case Management Conference … Claimants informed the Arbitral Tribunal that it intended to file a request for anti-suit injunction with respect to the [state court] proceedings. …

II. Claimants’ request for an anti-suit injunction

4. … Claimants request that:

[…] the Arbitral Tribunal issue an interim award or preliminary order:

(a) Enjoining [Respondent] from continuing the [state court] proceedings or from commencing a new case in [state] court against Claimants concerning the Licensing Agreement;

(b) Ordering [Respondent] to file a request with the [state] court that the proceedings be stayed or dismissed as they relate to the Licensing Agreement pending a decision by this Arbitral Tribunal on its jurisdiction to decide the dispute;

(c) Ordering [Respondent] to abandon their request to have [Claimant 2] added as a party to the [state court] proceedings; and

(d) Ordering [Respondent] to reimburse [Claimants] for the past and future costs of the … litigation and any increased costs in this arbitration, including its legal fees and expenses, the fees and expenses of the Tribunal relating to this request for anti-suit relief and any future expenses occasioned in the arbitration as a result of the … litigation.

(e) In the alternative, if the Tribunal is not prepared to issue the anti-suit relief and damages requested, Claimants specifically ask the Tribunal to reserve making definite determination on the issue of anti-suit relief until the [state court] proceedings have progressed further.

5. [Respondent] in its Response on anti-suit injunction requests the Tribunal to dismiss Claimants’ application.

III. Parties’ positions on Claimants’ request for an anti-suit injunction

A. Claimants’ position

6. In essence, Claimants submit that the Arbitral Tribunal should issue an anti-suit injunction to remedy the breach of the arbitration agreement caused by [Respondent]’s initiating the [state court] proceedings … The exclusive arbitration clause of the Licensing Agreement requires that all claims “aris[ing] out of” and “in connection” with the Licensing Agreement be resolved through arbitration … Comparing the [state court] proceedings with this arbitration clearly shows that both proceedings are largely overlapping as they involve the same key issue (the termination of the Licensing Agreement), the same parties ([Claimants and Respondent]) and the same contract (the Licensing Agreement) … Respondent’s argument that the Arbitral Tribunal may not issue an anti-suit injunction failing jurisdiction over [Claimant 1] is flawed. First, the Arbitral Tribunal does not need to rule on its in personam jurisdiction to warrant an anti-suit relief when the existence of a valid arbitration clause is established. Second, it is undisputed that the Arbitral Tribunal has jurisdiction over at least one of the Claimants, namely [Claimant 2]. Respondent itself has expressed its understanding that [Claimant 1] is party to the Licensing Agreement … Finally, [Claimant 1] denies having submitted to the [state] Court’s jurisdiction … Furthermore, the dispute of the arbitral proceedings will seriously be aggravated by rulings of the [state] Court conflicting with those of the Arbitral Tribunal, and issues ofres judicata may arise … To prevent such future conflict and considering that the [state] Court has not yet ruled on its jurisdiction, the Arbitral Tribunal should order an anti-suit injunction at this stage …

7. The criteria applied by Respondent for the granting of an anti-suit injunction (prima faciecase on the merits, emergency, irreparable harm etc. ...) are not applicable in the present case. The requirements for an anti-suit injunction, which protects the integrity of the arbitration procedure, are different from the requirements for interim relief as the latter refers to the merits of the case …

B. Respondent’s position

8. Respondent submits that the following essential conditions for granting interim measures are not met …

(i) The Tribunal has jurisdiction (or at least prima faciejurisdiction) over the parties;

(ii) The Claimants have a prima faciecase on the merits;

(iii) Respondent has breached the arbitration agreement, or an injunction is necessary to avoid “aggravation” of the dispute;

(iv) The relief sought is urgent;

(v) Claimants have not delayed their request for relief;

(vi) Claimants would suffer irreparable harm if the relief is not granted.

With respect to the first condition, Respondent argues that the Arbitral Tribunal may grant interim measures only “insofar as it has jurisdiction over the parties arising from an arbitration agreement between them”…. [Claimant 1] is not a party to the Licensing Agreement ([Claimant 2] being the proper party), the Arbitral Tribunal does not have jurisdiction over [Claimant 1] and it follows that the [state] proceedings against [Claimant 1] cannot breach the arbitration clause... [Respondent] further contends that [Claimant 1] submitted to the jurisdiction of the [state] Court ... With respect to the second condition, Respondent submits that Claimants failed to establish aprima facie case on the merits …; on the contrary, the wording of the Licensing Agreement clearly shows that “the alleged contractual obligations upon which the Claimants rely simply do not exist”… The third condition is not met either. Allowing the [state] Court to rule on its jurisdiction will not aggravate the dispute, considering that “[t]he [Arbitral] Tribunal has not yet decided on its jurisdiction and will not do so for some time [and that] the New York Convention is binding upon [the] [state] court”… [Respondent] therefore suggests that the Arbitral Tribunal adopt a “wait-and-see” approach … As to the fourth condition, Respondent argues that Claimants themselves acknowledged the lack of urgency by suggesting the Arbitral Tribunal to adopt, in the alternative, a “wait-and-see” approach... This, in Respondent’s view, is further supported by the fact that there is no imminent judgment on the merits by the [state] Court ... Besides, had there been any urgency, Claimants could have resorted to an emergency arbitrator pursuant to Article 29(1) of the ICC Rules instead of filing its Request for an anti-suit injunction with considerable delay … At the hearing on anti-suit injunction, Respondent confirmed its view that the fifth condition was not satisfied given Claimants’ delay in filing their Request for an anti-suit injunction. Instead of filing their Request as soon as they learned about the [state court] Complaint …, they waited [some six months] to do so. Finally, Claimants have not demonstrated that irreparable harm would occur if the [state court] proceedings were to continue … Besides, even if the [state court] proceedings may result in additional costs for Claimants, Respondent contends that they are marginal and can adequately be compensated for in damages ...

9. Further arguments brought forward by the Parties in their written submissions and at the hearing on anti-suit injunction shall be dealt with in the following considerations by the Arbitral Tribunal to the extent they are considered to be relevant.

IV. Considerations of the Arbitral Tribunal

A. Power of the Arbitral Tribunal to order anti-suit injunctions

10. The Parties acknowledge that the Arbitral Tribunal is empowered to warrant anti-suit reliefs based on Article 183 of the Swiss Private International Law Act (lex arbitri) which provides that “[u]nless the parties have agreed otherwise, the arbitral tribunal may enter provisional or protective measures at the request of one party”;as well as based on Article 28(1) ICC Rules pursuant to which “[u]nless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate”.

11. With regard to Respondent’s argument that the Arbitral Tribunal lacks jurisdiction over [Claimant 1], the Arbitral Tribunal is of the view that the in personam jurisdiction is not a precondition for granting an anti-suit injunction. The power of arbitrators to grant such a relief stems from the existence of a valid arbitration agreement and it is the protection of the arbitration agreement’s integrity which must be the rationale to vest the power in the arbitral tribunal. In the present case, the Licensing Agreement contains an exclusive arbitration clause pursuant to which the Parties agreed to resolve all claims “aris[ing] out of” and “in connection”with the Licensing Agreement through an ICC arbitration (Article12 of the Licensing Agreement). The validity of the arbitration clause is not in dispute. Respondent’s objection regarding [Claimant 1] pertains to the scope of the jurisdiction rather than to whether the Arbitral Tribunal has jurisdiction and Respondent does not dispute the Arbitral Tribunal’s jurisdiction over [Claimant 2]. Insofar as the prima facievalidity of the arbitration clause is not contested, the Arbitral Tribunal is entitled to protect the integrity of the arbitral clause at any stage of the arbitral proceedings, even before a final determination on jurisdiction has been made,1 and the Arbitral Tribunal does not need to rule on its jurisdiction over [Claimant 1] prior to issuing an anti-suit injunction.

B. Relevant criteria for granting an anti-suit injunction

12. Different criteria apply depending on what type of interim measure is requested. When the interim measure relates to the merits of the claim (conservatory measures such as freezing orders or orders to cease the use of a trademark/logo), criteria such as the demonstration of a prima faciecase on the merits, urgency and irreparable harm may apply. In contrast, when the interim measure relates to the procedure (such as anti-suit injunctions), an injunction should be founded on an examination whether (i) there is a breach of the arbitration agreement (filing of an action before a foreign forum involving similar parties, claims, contract) and (ii) such breach potentially causes an aggravation of the dispute. These are the requirements which the Arbitral Tribunal considers to be decisive.

1) Breach of the arbitration clause

13. A comparison of the [state court] proceedings with the present arbitral proceedings shows the following:

a) Parties

14. The principal parties are the same since [Claimant 1] and [Respondent] are acting in both proceedings. The fact that there are additional parties in the … litigation … does not prevent the Arbitral Tribunal from issuing an anti-suit injunction. The only consequence is that the anti-suit injunction will not affect these parties …2Furthermore, in this arbitration [Respondent] contends that [Claimant 2] is party to the Licensing Agreement and thus acknowledges the Arbitral Tribunal’s jurisdiction over [Claimant 2]. Therefore, [Respondent]’s request to have [Claimant 2] added as a party to the [state court] proceedings amountsprima facieto a violation of the integrity of the arbitration clause towards [Claimant 2]. If granted, such an injunction would thus implicate also [Claimant 2] as a party.

b) Claims

15. The termination of the Licensing Agreement is a common issue in both proceedings. In the [state court] Complaint, [Respondent] contends that the termination notice of the Licensing Agreement is null and void and therefore seeks its cancellation …whereas in this arbitration, Claimants request a declaratory relief that the Licensing Agreement was properly terminated … The [state court] Complaint also overlaps with Respondent’s counterclaims in the arbitral proceedings seeking a declaration that the Licensing Agreement was not terminated and remains in full force and effect … The distinction drawn by Respondent at the hearing on anti-suit injunction, that the claims were different to the extent that the [state court] proceedings deal with the nullity of the termination notice and not the termination of the Licensing Agreement, is not relevant in the present circumstances and does not change the fact that the subject matter of the dispute in both proceedings is the termination of the Licensing Agreement. Also, the fact that the arbitral proceedings implicate additional claims/counterclaims is irrelevant as all the claims of the [state court] proceedings can be brought under the umbrella of the claims submitted in this arbitration.

c) Contract

16. Both proceedings involve claims in connection with the Licensing Agreement. The fact that the [state court] proceedings involve an additional contract (i.e. the Dealer Contract)does not prevent the Arbitral Tribunal from issuing an anti-suit injunction. The only consequence is that the anti-suit injunction will not affect the claims relating to the Dealer Contract.

2) Aggravation of the dispute

17. The [state court] proceedings, being largely identical to the arbitral proceedings, may significantly aggravate the present dispute. If the [state] Court renders a judgment on key issues such as who are the parties to the Licensing Agreement or whether the termination of the Licensing Agreement is rightful, a risk exists for divergent rulings and a possible res judicata effect that would seriously complicate the proceedings before the Arbitral Tribunal. With similar or identical issues and the same parties in both proceedings, largely duplicative pleadings and unnecessary costs will be created. With the [state court] proceedings still being at an early stage (the [state] Court has not yet moved to the jurisdictional phase of the case) such difficulties, duplications and costs could easily be avoided with an anti-suit injunction by this Tribunal.

3) Undue delay

18. Although it is a general rule that parties are expected to act in good faith and exercise their rights timely, this is not a specific requirement for an anti-suit injunction. A party to an arbitration agreement retains the right to request an anti-suit injunction, unless circumstances would indicate that there is an abuse of right which is not the case here. Claimants expressed their intention to file the request as soon as the arbitral proceedings started, namely during the Initial Case Management Conference ...There was no possibility to resort to an emergency arbitrator pursuant to Article 29(1) of the ICC Rules in force as from 1 January 2012 as the arbitration agreement was concluded [several years earlier] (Article 29(6)(a) ICC Rules).

C. Concluding remarks

19. The present Order is rendered after reviewing the submissions referred to above and based upon the record currently before the Arbitral Tribunal and without prejudice to any other or further matters or issues raised in future submissions or pleadings. In particular, the considerations of the Arbitral Tribunal are based on a prima facieanalysis and are without prejudice to the Arbitral Tribunal’s final determination. If, in the future course of this arbitration, new elements likely to affect the operative part of this order were to occur, the Arbitral Tribunal may still revise its present order upon application by either Party or on its own motion.

20. With reference to the above analysis, the Arbitral Tribunal finds it appropriate to issue an anti-suit injunction ordering [Respondent] to desist continuing the [state court] proceedings and to request a stay of the [state court] proceedings insofar as they concern [Claimant 1] and the claims related to the Licensing Agreement. With respect to [Claimant 2], [Respondent] shall be directed to withdraw its request to join [Claimant 2] to the [state court] proceedings. [Respondent] shall also refrain from commencing a new litigation in a [another court in the same state] against [Claimant 1] and [Claimant 2] concerning the Licensing Agreement.

V. Costs and fees

21. Claimants ask that [Respondent] reimburse their past and future costs of the [state court] proceedings and any increased costs in this arbitration, including legal fees and expenses, the fees and expenses of the Arbitral Tribunal relating to this request and any future expenses occasioned in the arbitration as a result of the [state court] proceedings ... Respondent submits that the Arbitral Tribunal should defer its decision until it renders an award in relation to the merits or until it has decided on its jurisdiction …

22. Considering that the Arbitral Tribunal has not yet ruled on its in personam jurisdiction, the assessment and allocation of costs relating to the Claimants’ Request for an anti-suit injunction will be reserved until the final decision on the merits.’

1
E. Gaillard, “Anti-Suit Injunctions Issued by Arbitrators”, in International Arbitration2006: Back to Basics,ICCA Congress Series No. 13 Albert Jan van den Berg ed., 2007 … p. 265.

2
Mosimann, “Anti-Suit Injunctions Issued by the Arbitral Tribunal” in Anti-Suit Injunctions in International Commercial Arbitration, Eleven International Publishing (2010) … § 4.3.2: “it can also suffice if the parties are almost identical. This was the case in an ICC arbitration, where only A, B and C were parties to the ICC arbitration whereas in the parallel litigation, X and a joint-venture formed by A, B and C were additional parties.”