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( Source of the document: ICC Digital Library )
1. John Beechey's presidency of the ICC International Court of Arbitration was very fruitful. Among the notable developments that took place under his leadership was the implementation of new ICC Rules of Arbitration (the 'ICC Rules'), which came into force on 1 January 2012. They included a major innovation in Article 29 entitled 'Emergency Arbitrator'.2 This Article is supplemented by the Emergency Arbitrator Rules set forth in Appendix V. Appendix V and the first four paragraphs of Article 29 are together referred to as the 'Emergency Arbitrator Provisions'.
2. Under the ICC Emergency Arbitrator Provisions, the President of the ICC Court has extensive powers. These include deciding on the admissibility of applications for emergency measures and appointing emergency arbitrators (Appendix V, Articles 1(5) and 2(1)). Furthermore, residual powers are conferred upon the President under Article 8(1) of Appendix V:
The President shall have the power to decide, at the President's discretion, all matters relating to the administration of the emergency arbitrator proceedings not expressly provided for in this Appendix.
These are important responsibilities which John Beechey assumed admirably, as he did the many other tasks with which he was entrusted during his presidency.
3. For this book in John Beechey's honour, I thought it would be interesting to analyse anti-suit injunctions issued by emergency arbitrators. It is not my intention to deal in detail with the ICC Emergency Arbitrator [Page70:] Provisions3 or revisit the universe of anti-suit injunctions4 - both have been amply studied and commented on elsewhere - but rather to examine the circumstances in which emergency arbitrators can grant anti-suit injunctions. After discussing the concept and legal nature of anti-suit injunctions, I will address the power of arbitral tribunals to grant such measures and then consider whether emergency arbitrators have the same power. Although my focus will be on the ICC emergency arbitrator procedure, the conclusions I draw may apply more broadly to any emergency arbitrator unless the applicable procedural rules contain different provisions.
II. Concept of anti-suit injunctions
4. Anti-suit injunctions originated in common law jurisdictions.5 They have been defined as 'a device … whereby a court orders a party to refrain from bringing a claim before the courts of another State or before an arbitral tribunal or, if the party has already brought such a claim, orders that party to withdraw from, or to suspend, the proceedings'.6
5. According to this definition, anti-suit injunctions would encompass anti-arbitration injunctions. It should be added that they can also be issued by arbitral tribunals and hence are not (or no longer) peculiar to courts.
6. Anti-suit injunctions are increasingly encountered in international arbitration. They have been used by courts to prevent or support arbitral proceedings. These may be issued by courts at the seat of an arbitration (sometimes in support of the arbitration) or by courts elsewhere (generally to prevent arbitration from taking place at the seat).
7. Anti-suit injunctions operate in personam, i.e. they are directed at the party and not at the foreign court whose proceedings are impugned.7 As the English House of Lords put it in Turner, the injunction 'is in substance directed at unconscionable conduct of the defendant, as distinct from jurisdictional error by the foreign courts'.8 However, several scholars have noted that in reality anti-suit injunctions affect the sovereignty of a foreign forum,9 and therefore constitute 'an interference with a foreign process with all of the implications of comity and sovereignty involved'.10
8. Further, anti-suit injunctions have occasionally been addressed to arbitral tribunals, which may result in unacceptable risks for arbitrators if they are within the jurisdiction of the court that issued the injunction.
9. The tension between anti-suit injunctions and the principle of comity has been analysed by writers elsewhere.11 It is a question that lies outside the scope of this article. Suffice to say that the Institute of International Law made an express reference to the 'demands of [Page72:] comity' in its 2003 Resolution on 'the principles for determining when the use of the doctrine of forum non-conveniens and anti-suit injunctions is appropriate'.12
10. Case law in many jurisdictions also refers to comity or self-restraint when dealing with anti-suit injunctions.13 As will be seen below, the European Court of Justice (ECJ) has referred to 'mutual trust' among Member States, which is a related concept.
11. Anti-suit injunctions have often been presented as a means of protecting the jurisdiction of the forum that issues the injunction. In this sense, they are linked to the doctrine of forum non conveniens and have even been described as an 'offensive form of the forum non-conveniens tool'.14
12. However, anti-suit injunctions may serve a broader purpose. For instance, they have been used in relation to the enforcement of awards, in particular to prevent actions to enforce an international award.15 They have also been used, especially by arbitral tribunals, to avoid an aggravation of the dispute. This use should be regarded as distinct from their use as a means of concentrating parallel proceedings involving identical parties and claims into a single forum, which has led some writers to claim that the identity of the parties and the subject matter is a necessary prerequisite for anti-suit injunctions.16 However, this claim proves unfounded if one accepts that anti-suit injunctions can serve purposes other than simply concentrating the dispute in a single forum.17
13. The attitudes of national courts to granting anti-suit injunctions vary. In the USA, the Circuits are split and it is usual to distinguish between 'conservative' and 'liberal' approaches.18 Under the conservative approach, 'comity dictates that foreign anti-suit injunctions be issued sparingly and only in the rarest of cases',19 such as 'if res judicata applies to bar the foreign proceedings or if the foreign litigation threatens an important policy or the court's jurisdiction'.20 On the other hand, liberal [Page73:] courts take an 'extremely broad and flexible approach', placing 'greater emphasis on equitable considerations' and referring notably to the 'unwarranted inconvenience', 'vexation', 'harassment', 'expense' and 'delay' caused by the foreign proceedings.21 Between the two, scholars have also identified a middle ground.22
14. In the UK, the jurisdiction of the courts to order anti-suit injunctions derives from section 37 of the Supreme Court Act 1981, which provides that the High Court 'may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so'. English courts have shown willingness to issue anti-suit injunctions in two kinds of situations: i) when the foreign (or arbitral) proceedings are 'an infringement of a legal or equitable right of a party or threatened breach of such right', and ii) when the proceedings are or threaten to be 'vexatious, oppressive or unconscionable'.23 In situations of the first kind the infringement is typically the breach of an exclusive choice-of-forum or arbitration agreement. Here, English courts seem to consider anti-suit injunctions justified by the mere fact that proceedings have been initiated in breach of the arbitration agreement. In a landmark decision, the Court of Appeal in The Angelic Grace held that where an exclusive forum or arbitration agreement has been breached, jurisdiction to grant an injunction is the rule and 'good reason needs to be shown why it should not be exercised in any given case', stressing also that '[t]he justification for the grant of the injunction in either case [arbitration clause and exclusive jurisdiction clause] is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy'.24 Under this standard it is sufficient to demonstrate that the proceedings have been brought in the 'wrong' forum; there is no need to show that it is a 'bad' or otherwise oppressive forum.
15. As will be seen later, it is debatable whether such a standard can be transposed to the issuing of anti-suit injunctions by arbitral tribunals or emergency arbitrators.
III. Legal nature of anti-suit injunctions
16. The legal nature of anti-suit injunctions has been the subject of much debate. Anti-suit injunctions are usually characterized as interim measures, i.e. provisional relief.25 This was the approach taken by the UNCITRAL Working Group responsible for the 2006 revision of the UNCITRAL Model Law on International Commercial Arbitration (the 'UNCITRAL Model Law'),26 where anti-suit injunctions are placed within the ambit of interim measures. However, this was, and still is, a bone [Page74:] of contention. Some members of the Working Group questioned the validity of such an approach, noting that anti-suit injunctions are not always provisional in nature and that they concern the jurisdiction of the arbitral tribunal.27
17. In a similar vein, Bachand has stated that anti-suit injunctions are designed to ensure 'the effectiveness of the arbitration agreement' and 'cannot be said to constitute interim measures of protection'.28 He further considers that '[i]nterim measures of protection are essentially aimed at ensuring the effectiveness of the adjudicative process resorted to by the claimant, while anti-suit injunctions are mainly aimed at enforcing a right asserted by the defendant not to be sued in the forum chosen by the plaintiff'.29
18. In my opinion, the question is not whether anti-suit injunctions are or are not interim measures. Anti-suit injunctions may be provisional if they are requested as an interim measure and before any decision is taken on the merits of the dispute. However, they may also be requested on a permanent basis, as an issue to be dealt with in the award on the merits. This, as seen above, was recognized in section 37 of the UK Supreme Court Act 1981, which states that an injunction can be 'interlocutory' (i.e. provisional) or 'final' (i.e. permanent). In the former case, anti-suit injunctions will be subject to rules and principles governing provisional relief (adapted, where necessary, to take account of their specific nature); in the latter case, they will not.
19. The real question for present purposes is whether arbitral tribunals are permitted to grant anti-suit injunctions only as provisional relief and whether they 'should be avoided as a final relief'.30 This issue is addressed below.
IV. Power of arbitral tribunals to issue anti-suit injunctions
20. Before considering the grant of anti-suit injunctions by emergency arbitrators, it is necessary to enquire whether and to what extent such measures may be granted by arbitrators at all. An arbitral tribunal's power to issue anti-suit injunctions as interim measures would today appear to be uncontested.31 It has been referred to as 'well established',32 with anti-suit injunctions now being regarded as part of the panoply [Page75:] of interim measures at the disposal of arbitrators.33 Accordingly, an arbitral tribunal's power to grant anti-suit injunctions is a corollary of its power to grant interim measures.34 As will be seen below (section VI), this power has been recognized in several arbitral awards and orders.
21. Further, as already observed, Article 17(2) of the UNCITRAL Model Law includes anti-suit injunctions in its definition of interim measures available to arbitral tribunals when it mentions orders to avoid 'action that is likely to cause … prejudice to the arbitral process itself'. The UNCITRAL Working Group confirmed that such terms were intended to encompass anti-suit injunctions and other measures designed to prevent obstruction or delays in the arbitral process.35 As stated by Gaillard, Article 17 of the UNCITRAL Model Law 'provides another indication of the general acceptance that anti-suit injunctions may be issued by arbitrators'.36
22. Therefore, an arbitrator's power to issue anti-suit injunctions in the form of interim measures can be taken as accepted. However, the issuing of permanent anti-suit injunctions is more controversial.
23. Gaillard does not restrict the arbitral tribunal's power to provisional anti-suit injunctions, asserting that this power is 'deeply rooted in well recognized principles of international arbitration law, namely the arbitrators' jurisdiction to sanction all breaches of the arbitration agreement' and the arbitrators' power to take any appropriate measures either to avoid the aggravation of the dispute or to ensure the effectiveness of their future award'.37 The jurisdiction to sanction breaches of the arbitration agreement could be exercised 'either by an award of damages or by ordinary specific performance'.38 In other words, anti-suit injunctions are a form of 'reparation in kind' of a breach of the arbitration agreement.39
24. This analysis has however been questioned. Lévy in particular has expressed doubts over the argument that the 'enjoining judge [or arbitrator] is ordering the performance of the arbitration agreement in kind'.40 For him, it is 'debatable whether an arbitration agreement gives rise to a strict obligation (i.e., a duty) which, if violated, may result in an award of damages'. He stresses that jurisdiction 'is something that is declared, not something that can be ordered'.41
25. More radically, Vishnevskaya has recently argued that anti-suit injunctions should be limited to the period up until the arbitral tribunal renders its final award and that 'once the final award is rendered, other mechanisms devised to protect an arbitral award come into play and the arbitral tribunal should not supplement them with an injunction'.42 She finds it 'highly questionable whether an arbitral tribunal has authority and jurisdiction to prolong the effect of an anti-suit injunction and grant it on a permanent basis'.43 In support of her position, Vishnevskaya relies on the final award in ICC case 16240,44 where the arbitral tribunal found that it did not have jurisdiction to issue an indefinite and permanent order, and stressed that 'the main value of anti-suit injunctions is to prevent parallel proceedings' and that they 'are thus useful in affording arbitral tribunals the time necessary to render final awards'. The tribunal also observed that final awards 'constitute res judicata' and that after the award has been rendered, the res judicata exception 'is or should be an effective means for the party to defend itself in state court proceedings dealing with the subject matter of the arbitral award'.
26. In my opinion, arbitral tribunals should have the authority to grant on a permanent basis any type of injunction that they can grant on a provisional basis. Be that as it may, the focus of the present contribution is anti-suit injunctions issued by emergency arbitrators and these, by definition, are provisional in nature (see Article 29(3) of the ICC Rules).
27. Gaillard has identified as another source of the arbitral tribunal's authority to issue anti-suit injunctions its power 'to take any measure necessary to avoid the aggravation of the dispute or to protect the effectiveness of the award', of which 'the power to issue anti-suit injunctions is only one aspect'.45 This, as I have already suggested, shows that anti-suit injunctions can have a broader purpose than simply protecting jurisdiction. A dispute can be 'aggravated' not only if parallel proceedings involving the same subject matter and the same parties are brought in a forum other than the agreed arbitration, but also by the abusive initiation of court proceedings on ancillary issues that are only indirectly related to the issues in dispute in the arbitration (e.g. filing of criminal law proceedings to intimidate a party or a witness). In such situations anti-suit injunctions are conceivable as well.
28. However, it is important to bear in mind that anti-suit injunctions intended to avoid an 'aggravation of the dispute' are conceptually different from anti-suit injunctions that protect the arbitral tribunal's jurisdiction by sanctioning a breach of the arbitration agreement [Page77:] through an order for specific performance of that agreement. Only the latter are concerned with the problem of parallel proceedings involving identical parties and claims, which they seek to address by concentrating the dispute in a single forum.
29. In view of the above, I share the view of Scherer and Jahnel that it is 'also conceivable that parallel proceedings would be found to be improper even if they do not deal with the merits of the case' and that it is 'conceivable that a parallel action (such as a lawsuit, administrative proceeding, or criminal complaint) initiated after the constitution of the arbitral tribunal is inconsistent with the parties' obligation even if it does not encroach on the arbitral tribunal's jurisdiction'.46
30. I would submit that although an arbitral tribunal's power to grant anti-suit injunctions on a permanent basis remains subject to some debate, this power should be accepted. Anti-suit injunctions are not limited to measures designed to protect the arbitral tribunal's jurisdiction. They may, more broadly, concern situations that do not strictly 'encroach on the arbitral tribunal's jurisdiction' but where there is a risk of aggravation of the dispute and prejudice to the arbitral process itself.
31. In any event, the exercise of the power to order anti-suit injunctions depends on the existence of appropriate conditions. This is the issue to which we now turn.
V. Conditions for granting anti-suit injunctions in the form of interim measures by arbitrators
32. The granting of anti-suit injunctions in the form of interim measures presupposes that the conditions for granting interim measures are fulfilled.47 Statutes and institutional rules do not usually describe under what conditions interim measures may be ordered in arbitration.48 For example, Article 28(1) of the ICC Rules merely states that the arbitral tribunal may order 'any interim or conservatory measure it deems appropriate'.
33. Article 17(A) of the UNCITRAL Model Law and Article 26(3) of the 2010 UNCITRAL Arbitration Rules are exceptions as they specify the 'conditions for granting interim measures'. However, it may be questioned whether these provisions truly reflect the criteria applied in practice.49 Be that as it may, the purpose of this contribution is not to revisit the conditions for granting interim measures in general, but rather to examine how such conditions apply to applications for anti-suit injunctions.
34. As a preliminary remark, it may be noted that opinion is divided on the appropriateness of anti-suit injunctions in arbitration and hence on the conditions under which they may be granted (and the assessment of those conditions). Some authors consider that they should be granted almost as a matter of routine whenever a party breaches the arbitration agreement.50 Others are more restrictive and find them acceptable only where there is fraud or abusive conduct by the party at whom the measure is directed.51 They describe them as a 'necessary evil' appropriate only in exceptional circumstances.52
Prima facie jurisdiction
35. The arbitral tribunal must have jurisdiction (at least prima facie) to rule on the merits of the case. This condition does not raise any particular issues when the requested measure is an anti-suit injunction.
Prima facie case on the merits
36. The applicant must show a prima facie case on the merits or, as Article 17A(1)(b) of the UNCITRAL Model Law puts it, demonstrate that '[t]here is a reasonable possibility that the requesting party will succeed on the merits of the claim'.
37. Several authors have considered that the 'merits of the claim' in the context of anti-suit injunctions refers to the alleged breach of the arbitration agreement. According to Vishnevskaya, the applicant 'must show that it has a prima facie right to be protected from the breach of the arbitration agreement by the other party' and this requirement is met 'when the arbitral tribunal finds that the parties intend to submit their dispute to the arbitration to the exclusion of the state court jurisdiction'.53 The applicant must therefore demonstrate (at least on a prima facie basis) that by filing or threatening to file proceedings in a forum other than that of the agreed arbitration, the other party has breached the arbitration agreement. It will be necessary to show that the parallel proceedings concern the same parties and the same subject matter.54
38. I agree with this analysis in the cases where the anti-suit injunction is meant to protect the jurisdiction of the arbitral tribunal. However, if its purpose is to avoid an 'aggravation of the dispute', then the [Page79:] applicant will need to demonstrate that it has a prima facie case on the substantive claims made in the arbitration rather than on the breach of the arbitration agreement.
39. According to Mosimann, the determination of the arbitral tribunal's prima facie jurisdiction 'overlaps with the prima facie establishment of the right to be protected by the interim measure',55 namely the existence of a prima facie valid arbitration agreement and a prima facie breach of that agreement. I would disagree: these two conditions do not overlap as the jurisdiction of the arbitral tribunal, on the one hand, and the breach of the arbitration agreement, on the other hand, can be subject to different laws. The arbitrability of a dispute may be defined differently at the seat of the arbitration and at the place where the allegedly improper proceedings have been initiated, so it is perfectly possible for an arbitral tribunal to have jurisdiction under the law of the seat and, at the same time, for a lawsuit in another forum not to be considered as a breach of the arbitration agreement from the perspective of that forum.
40. In my opinion, when requested to grant an anti-suit injunction, an arbitral tribunal should examine the alleged breach of the arbitration agreement from the standpoint of the law governing the validity of the agreement at the place where the proceedings to be enjoined were initiated (not the law at the seat of the arbitration). If that examination leads to the conclusion that there is no breach of the agreement, the arbitral tribunal could still find that the concurrent proceedings aggravate the dispute and for that reason should be enjoined.
41. Although not explicitly mentioned in Article 17(A) of the UNCITRAL Model Law or Article 26(3) of the UNICTRAL Arbitration Rules, urgency is a prerequisite for granting interim measures.56
42. Urgency is related to the duration of the arbitration. The applicant must show that it needs protection immediately and cannot wait until an award is rendered on the merits.57 This is necessarily the case where anti-suit injunctions are concerned, because they would be meaningless once the award on the merits has been rendered.
43. State courts may consider that urgency requires the applicant to request the injunction as soon as possible after the need for protection arises, failing which it would be deemed to have waived its right to do so.58 However, this does not appear to be a systematic requirement in arbitral practice.59
44. The applicant must show that the requested measure is necessary to avoid irreparable harm or at least substantial prejudice. Article 17A(1)(a) of the UNCITRAL Model Law uses the expression 'harm not adequately reparable by an award of damages', which seems to be even broader.60
45. Assessing whether this requirement has been met is not a straightforward matter. The difficulty will be to determine whether the mere fact of being sued, or threatened with a lawsuit, in a forum other than that of the agreed arbitration is sufficient to cause the applicant substantial prejudice, or whether the applicant must in addition show that the proceedings initiated in breach of the arbitration agreement result in specific harm, e.g. by exposing the applicant to unbearable financial pressure or to a breach of confidentiality.
46. As mentioned earlier (see § 14), English case law has taken the former approach and considers that a breach or threatened breach of the arbitration agreement is sufficient cause for issuing an anti-suit injunction, unless serious reasons can be shown for not doing so. Some scholars propose applying the same test to anti-suit injunctions issued by arbitrators. Mosimann has submitted that '[d]isregarding the arbitral bargain itself creates the substantial prejudice' and that '[w]hether this generates costs leading to severe financial problems, or any other disadvantage or inconvenience, does not have to be shown although it will usually be the case'.61 He adds that 'it suffices that the other party threatens to or already has commenced other proceedings', but underlines that additional factors will have to be taken into account in the balance of interests.62
47. Others advocate a more restrictive approach and consider that the breach of the arbitration agreement is alone not sufficient to satisfy the requirement of substantial prejudice and that more must be shown by the applicant. 63
48. I tend to favour the latter approach. However, this debate is of little importance in practice as the factors causing specific harm (e.g. financial pressure, breach of confidentiality) will in any event have to be taken into account by the arbitral tribunal when balancing the interests of the disputing parties, to which I will now turn.
49. Before doing so and for the sake of completeness, let me add that I would not go as far as Vishnevskaya, who has submitted that necessity, the risk of irreparable harm and urgency can 'only be established if the requesting party had raised the arbitration defence in the court proceedings and the court had [nevertheless] ruled positively on its jurisdiction'.64 Anti-suit injunctions would hence be appropriate, according to this scholar, only 'if this remedy is granted after the court had a chance to exercise its jurisdictional power and ruled on its competence over the dispute' (emphasis added).65 I disagree because the purpose of anti-suit injunctions is precisely to prevent the conduct of parallel proceedings, even when they concern the narrow issue of jurisdiction (which in any case does not have to be treated separately and, especially in the courts, is sometimes dealt with at the same time as the substantive issues in dispute).
Balance of interests
50. Before interim measures are ordered, the competing interests of the disputing parties must be weighed against each other.66 This is a condition enunciated in Article 17A(1)(a) of the UNCITRAL Model Law, which requires the applicant to show that the harm it faces if the measure is not ordered 'substantially outweighs' the harm 'likely to result to the party against whom the measure is directed if the measure is granted'. Such a balance of interest corresponds, in essence, to the test of proportionality.67 Mosimann correctly observes that the same exercise must be performed when examining applications for anti-suit injunctions: the 'interests of the applicant (urgency and substantial prejudice), on the one hand, have to be weighed against the interests of the other party, on the other hand'.68
51. The 'bad faith' or 'overall unconscionable conduct' of the party that has initiated the proceedings in breach of the arbitration agreement will be a factor 'in favor of ordering an anti-suit injunction'.69 Consideration will also need to be given to the concrete difficulties, harm and prejudice the applicant is likely to encounter in the concurrent proceedings (e.g. financial pressure, risk of facing biased authorities, [Page82:] breach of confidentiality). The balancing exercise will also call for an assessment of the potential drawbacks sometimes associated with anti-suit injunctions, such as a lack of efficiency or their potentially counterproductive impact in some situations.70
52. In my view, it would be wrong to establish a presumption for or against anti-suit injunctions. Whether or not they are to be granted should always depend on a case-by-case analysis that takes account of all relevant circumstances.
VI. Arbitral precedents
53. There have been several examples of arbitral tribunals deciding to grant anti-suit injunctions in the past. These decisions are not always published in full but simply cited or referred to in articles on anti-suit injunctions.71 Some of these decisions are discussed below.
54. In case 240/93 of the Zurich Chamber of Commerce72 the arbitral tribunal held that it had the power to issue an anti-suit injunction on the basis of Article 28 of the former International Arbitration Rules of the Zurich Chamber of Commerce and Article 183 of the Swiss Private International Law Statute, both of which relate to interim measures. The arbitral tribunal found that the requested anti-suit injunction was 'appropriate in order to prevent imminent disadvantages to the petitioner' and pointed out that the production of documents in the parallel US proceedings could have created a 'genuine danger' for business secrets. The decision ordered the respondent to 'refrain from submitting or pursuing any claim arising out of, or in relation to the Agreement … to any authority or Court other than this contractually agreed Arbitration Tribunal'.73
55. In the much cited ICC case 8307,74 the sole arbitrator issued an 'Interim Award' ordering a party to 'refrain from pursuing the action it initiated' against the other parties in a court in country X. The arbitrator held that:
It is not contested that an arbitrator has the power to order parties to comply with their contractual commitments. The agreement to arbitrate being such a commitment, its violation must be dealt with by an arbitrator by issuing an order to comply when it is patent that a suit filed in a state court is outside the jurisdiction of that court and is therefore abusive.
It would appear from this part of the decision that a 'patent' breach of the arbitration agreement would in itself constitute abusive conduct by the party that initiated the lawsuit. The arbitrator went on to point out that
the damages at stake are the same in both proceedings … that two contradictory judgements might be rendered … that [the applicants] are forced to participate in two proceedings involving the same subject matter, to incur legal expenses twice and to accept disadvantages that they precisely sought to avoid when agreeing to the arbitration clause.
He noted that the enjoined party
would not be deprived of its rights because the facts pleaded by [the enjoined party] in the [state court] suit are the same as those alleged by [the enjoined party] in support of its claim in this arbitration. If … the [state court] is really based on other grounds, the facts in support thereof can presumably be pleaded by [the enjoined party] in this arbitration …
56. In ICC case 8887, the respondent requested a declaration from the Turkish courts that the claimant had no valid claim against it. The respondent also disputed the jurisdiction of the arbitrator, who issued a procedural order requesting it to refrain from pursuing its action in the courts.75
57. In ICC case 10681, an arbitral tribunal sitting in Dallas, Texas, USA, ordered one of the respondents76
to immediately cease and desist from continuing the litigation before the courts of the Dominican Republic against [Claimant] until a final award is issued in these arbitration proceedings, and to refrain during such period from undertaking any conduct which might directly or indirectly contradict the arbitration agreement and/or the present arbitration proceedings.
The arbitral tribunal made this order pursuant to its power to issue interim measures under Article 23 of the 1998 ICC Rules. It noted that
The issuance of an injunction is a delicate measure which tribunals, including arbitral tribunals, must take seriously and approach with the utmost caution. In deciding whether an injunction is warranted, tribunals are required to assess the consequences of such measure.
It added that
if [the respondent] is allowed to pursue the continuation of the domestic proceedings this may result in a judgment which, regardless of its findings, is clearly contrary to the express intent of the parties of having their disputes resolved by means of arbitration, as this intent was reflected in the arbitration clause under the Professional Services Agreement.
The arbitral tribunal also expressed the view that the court proceedings could 'materially affect the practical effectiveness of the ongoing arbitration proceedings and compromise the subject matter of the arbitration', but without specifying how. Ultimately, it is unclear which test was really applied by the arbitral tribunal in support of its decision.
58. In an ICDR case seated in Miami, USA, the arbitral tribunal issued an anti-suit injunction against a respondent incorporated in Venezuela, which had disputed the arbitral tribunal's jurisdiction and filed various claims in the Venezuelan courts.77 The anti-suit injunction was in a partial award in which the arbitral tribunal assumed jurisdiction and found that the respondent's action in the Venezuelan courts 'constitutes a breach of Respondent's obligations to arbitrate under [the arbitration clause]'.78 The arbitral tribunal continued:79
The inevitable consequence of these findings by the arbitral tribunal is that respondent must withdraw and desist from continuing legal action on the merits and supportive injunctive relief obtained from the Caracas Tenth Court of First Instance, Civil and Commercial Division, and refrain from initiating or reinstating similar actions, or applying for injunctive relief in support of such actions, from that and any other courts in Venezuela in connection with any, or all, of the Contracts.
It is difficult to analyse this decision as only excerpts are available, but it would appear that the mere breach of the arbitration agreement was considered sufficient grounds for issuing an anti-suit injunction and that it had permanent effect as it was part of a partial award.
59. In an arbitration in Singapore under the UNCITRAL Arbitration Rules, the arbitral tribunal issued an anti-suit injunction ordering that:80
Respondent be restrained … until further order of the Tribunal from arguing otherwise than before this Tribunal issues as to the Tribunal's jurisdiction and competence to determine all matters arising from the [request for arbitration].
The tribunal found that it had the power to issue such an injunction under the UNCITRAL Rules and Article 12(1)(i) of the Singapore International Arbitration Act, which gave the arbitral tribunal the power to issue 'an interim injunction or any other interim measure'. The arbitral tribunal applied some of the classic tests for granting interim measures, i.e. prima facie jurisdiction, urgency and irreparable harm.81
60. In a procedural order of 2008 rendered in an ICC arbitration seated in Geneva, the arbitral tribunal issued an anti-suit injunction pursuant to Article 23 on interim measures of the 1998 ICC Rules.82 The case concerned two parallel lawsuits initiated by the respondent and another party against the claimant in the arbitration (and one of its [Page85:] subsidiaries). The arbitral tribunal found that both lawsuits were based on distribution agreements containing an ICC arbitration clause and that the claims brought in the lawsuits came within the scope of the arbitration agreement. The arbitral tribunal ordered the respondent to withdraw and refrain from pursuing the lawsuits, describing the relief as 'appropriate, necessary and urgent'. Necessity, the arbitral tribunal explained, arose from the 'real risk that … claimant shall be obliged to assume additional significant costs and expenses … as well as time-consuming evidence taking […] and there is also a risk of contradictory decisions', and urgency from the fact that if no injunction is issued the claimant 'will be forced to incur in [sic] additional expenses and costs'. The arbitral tribunal added that the fact that the proceedings pending in the state courts 'are still at the early stages weights [sic] heavily for the Arbitral Tribunal'.83 This was a mild test, however, as the arbitral tribunal did not examine concretely if and to what extent the pending court proceedings would cause significant harm to the applicant (other than duplication of costs and the risk of contradictory decisions, which are inherent in any parallel proceedings). In the opinion of this arbitral tribunal, a breach of the arbitration agreement would alone be a sufficient reason to issue an anti-suit injunction.
61. In an ICC arbitration seated in Geneva,84 the arbitral tribunal was requested to issue an anti-suit, or rather an anti-arbitration, injunction to halt parallel arbitral proceedings which had been commenced pursuant to an alleged amendment to the arbitration agreement giving jurisdiction to an institution other than the ICC. After announcing that anti-suit injunctions are admissible 'only in case of a demonstrated risk of aggravation of the dispute or of a demonstrated violation of the arbitration agreement by the other party', the arbitral tribunal held that the parallel proceedings did not breach the arbitration agreement, first because the validity of such agreement was still to be decided and second because the claims before the ICC and before the other arbitral tribunal were 'not identical'. The arbitral tribunal therefore refused to order the respondent to withdraw its request for arbitration before the other arbitral institution but, considering that the second arbitration 'will without doubt aggravate the dispute due to the inevitable increase in costs of the Parties', the arbitral tribunal ordered a provisional stay of this arbitration:
the balance of inconvenience tips in favour of issuing a temporary interim order to be in force until it is predictable when the issue of jurisdiction will be decided in the present arbitration.
62. I am not convinced by this reasoning. It is difficult to follow and does not appear to apply the customary criteria for deciding on applications for interim measures. Further, if claims pending before the ICC arbitration and the other arbitral tribunal were not the same, it is difficult to see why it was so obvious that parallel proceedings would 'aggravate the dispute due to the inevitable increase in costs'.
63. Anti-suit injunctions have also been also ordered in investment arbitrations.85 However, an analysis of these decisions is beyond the scope of this article.
64. From the above review of arbitral precedents in commercial arbitration, it can be concluded that although the power of arbitrators to issue anti-suit injunctions in the form of interim measures is well established, the specific conditions in which they may be granted are less settled. Some (but not all) decisions suggest that the mere initiation, or pendency, of parallel proceedings on the same claims could justify an anti-suit injunction. Arbitral tribunals do not always discuss, or not in sufficient detail, the question whether the customary conditions for granting interim measures are met. In my opinion, no uniform standard has yet been established in practice for the issuing of anti-suit injunctions by arbitral tribunals.
VII. Interim measures and anti-suit injunctions by emergency arbitrators
65. The ICC Emergency Arbitrator Provisions do not specify under what conditions emergency measures may be granted, other than requiring urgency, which is implied by the fact that the requested measure 'cannot await the constitution of an arbitral tribunal', as stated in Article 29(1) of the ICC Rules.86
66. It appears from the review of the first ten ICC emergency arbitrator cases by Carlevaris and Feris that 'emergency arbitrators have not felt strictly bound by criteria commonly relied on in international arbitral practice' and that they have taken a very 'flexible approach'.87 The authors report that 'one emergency arbitrator decided that while international arbitration practice normally requires there to be a risk of irreparable harm, the applicant was entitled to relief despite the absence of such a risk, as the dispute would otherwise have worsened and granting the request would not cause irreparable harm to the responding party'.88
67. I do not share the view that the conditions for granting interim measures differ, or should differ, between an emergency arbitrator and an arbitral tribunal. There would appear to be no reason to apply a different test for each, especially as the conditions for granting interim measures by arbitrators in international arbitration allows for sufficient [Page87:] flexibility. In my opinion, emergency arbitrators have the same powers as arbitrators to issue interim measures and the same conditions apply in both cases.89
68. The interpretation of those conditions may differ slightly, however, as emergency arbitrator orders are made in the knowledge that they may be revisited by the arbitral tribunal, once constituted. When assessing urgency and balancing competing interests, an emergency arbitrator is aware that any order will have a short life span. This is likely to facilitate the grant of the requested measure because its effects will be less intrusive than when granted by an arbitral tribunal for the entire duration of a potentially lengthy arbitration.
69. This difference is also due to the different roles and mindsets of emergency arbitrators and arbitral tribunals. Given that, as stated in Article 2(6) of Appendix V to the ICC Rules, an emergency arbitrator 'shall not act as an arbitrator in any arbitration relating to the dispute that gave rise to the [Application for Emergency Measures]', the emergency arbitrator will not have to continue the procedure and for that reason may be less reticent to order the requested measure.90
70. The review of ICC emergency arbitrator cases reveals that anti-suit injunctions have been requested from emergency arbitrators91 and those requests have been granted at least in a few cases.92 As Seriki rightly concludes:93
In principle, there is no reason why an emergency arbitrator cannot do so, given that arbitrators can order an anti-suit injunction.
VIII. Special considerations in the European Union
71. The availability of court-ordered anti-suit injunctions has been addressed in two important decisions of the Court of Justice of the European Union (ECJ). In the first of these, Turner v. Grovit,94 the ECJ found that the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the 'Convention'), as amended, is to be interpreted 'as precluding the grant of an injunction whereby a court of a Contracting State prohibits a party to proceedings pending before it from commencing or continuing legal [Page88:] proceedings before a court of another Contracting State, even where that party is acting in bad faith with a view to frustrating the existing proceedings'.95
The Court stressed that it is 'inherent' in the principle of 'mutual trust' upon which the system of jurisdiction established by the Convention is founded that, save exception, the jurisdiction of a court cannot be reviewed by a court of another Contracting State. It went on:96
Any injunction prohibiting a claimant from bringing such an action must be seen as constituting interference with the jurisdiction of the foreign court which, as such, is incompatible with the system of the Convention. … In so far as the conduct for which the defendant is criticised consists in recourse to the jurisdiction of the court of another Member State, the judgment made as to the abusive nature of that conduct implies an assessment of the appropriateness of bringing proceedings before a court of another Member State. Such an assessment runs counter to the principle of mutual trust which … underpins the Convention and prohibits a court, except in special circumstances which are not applicable in this case, from reviewing the jurisdiction of the court of another Member State.
72. In West Tankers, a party requested an anti-suit injunction to give effect to an arbitration agreement that elected London as the seat of the arbitration. 97 The ECJ came to the same conclusion as in Turner. Having regard to Regulation No. 44/2010 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and its previous decisions on anti-suit injunctions, the ECJ found that 'it is incompatible with Regulation No. 44/2010 for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement'.98
73. These two decisions left some doubt as to whether they might have an effect on anti-suit injunctions ordered by arbitral tribunals. The ECJ decided not in Gazprom.99 The company Gazprom had entered into a shareholders agreement with E.ON Ruhrgas International GmbH and the state of Lithuania, in which the parties had included an arbitration clause. Lithuania requested a state court to initiate an investigation into the activities of a joint venture company. Gazprom filed a request for arbitration against Lithuania with the Arbitration Institute of the Stockholm Chamber of Commerce and requested that Lithuania be enjoined to discontinue the proceedings pending in the Lithuanian court. In its award of 31 July 2012, the arbitral tribunal found that the arbitration agreement had been partly breached. It ordered Lithuania [Page89:] to withdraw or limit some of the claims it had brought in the Lithuanian court. Subsequently, Gazprom sought the recognition and enforcement of that award in Lithuania.
The question put to the ECJ was whether Regulation No. 44/2010 had an impact on the recognition and enforcement of the award. It held that Regulation No. 44/2010 must be interpreted 'as not precluding a court of a Member State from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, since that regulation does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State'.100
74. As a result of the Gazprom decision, which I find legally correct, arbitrators (and emergency arbitrators) today have powers that courts themselves do not have in respect of anti-suit injunctions aimed at preventing court proceedings in another EU Member State. This may result in an increase in requests for anti-suit injunctions from emergency arbitrators whenever they are available to parties.
75. Arbitrators and emergency arbitrators have the power to issue anti-suit injunctions. They may do so by way of interim measures. However, the conditions for granting anti-suit injunctions on an interim basis remain unsettled. According to some scholars and arbitral decisions, a breach of the arbitration agreement appears to be a sufficient reason to order an anti-suit injunction. Others take a more restrictive approach, requiring abusive behaviour or applying customary conditions for granting interim measures, including evidence that the proceedings initiated in breach of the arbitration agreement would cause substantial harm. These questions are particularly important as anti-suit injunctions are likely to be increasingly sought in arbitration in the wake of the West Tankers decision prohibiting courts from ordering such measures in the European Union.
Partner with Lévy Kaufmann-Kohler, Geneva, Switzerland; firstname.lastname@example.org.
Before 1 January 2012, a means of obtaining urgent provisional measures prior to the constitution of an arbitral tribunal was available in the ICC pre-arbitral referee procedure, but its use presupposed a specific agreement by the parties: 'An agreement to use the Pre-Arbitral Referee Procedure must be in writing.' (Rules for a Pre-Arbitral Referee Procedure, Art. 3(1)).
On the ICC Emergency Arbitrator Provisions (and similar provisions of other institutions) see A. Carlevaris & J.R. Feris, 'Running in the ICC Emergency Arbitrator Rules: The First Ten Cases' (2014) 25:1 ICC International Court of Arbitration Bulletin 25; M. Jakob, 'Emergency Arbitrator Proceedings: Pre-Arbitral Interim Measures according to the Revised ICC-Rules' in D. Favalli et al., eds., Selected Papers on International Arbitration, SAA Series on International Arbitration, vol. 3, (Bern: Stämpfli, 2013) 85; B. Ehle, 'Emergency Arbitration in Practice' in C. Müller & A. Rigozzi, eds., New Developments in International Commercial Arbitration 2013 (Zurich: Schulthess, 2013) 87.
On anti-suit injunctions, see A. Ali, K. Nesbitt, J. Wessel, 'Anti-suit Injunctions in Support of International Arbitration in the United States and the United Kingdom' [2008:1] International Arbitration Law Review 12; F. Bachand, 'The UNCITRAL Model Law's Take on Anti-Suit Injunctions' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (New York: Juris, 2005) 87; E. Gaillard, 'Anti-suit Injunctions Issued by Arbitrators', in A. J. van den Berg, ed., International Arbitration 2006: Back to Basics? ICCA Congress Series No. 13 (The Hague: Kluwer, 2007) 235; J. Joy, 'Anti-Arbitration Injunctions: A Comparison of Approaches and the Problem of National Court Interference' (2015) 3:2 European International Arbitration Review 35; L. Lévy, 'Anti-Suit Injunctions Issued by Arbitrators' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (New York: Juris Publishing, 2005) 115; J.D.M. Lew, 'Anti-Suit Injunctions Issued by National Courts To Prevent Arbitration Proceedings' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (New York: Juris Publishing, 2005) 25; R. Moloo, 'Arbitrators Granting Antisuit Orders: When Should They and on What Authority? (2009) 26:5 Journal of International Arbitration 675; O.L. Mosimann, Anti-Suit Injunctions in International Commercial Arbitration (The Hague: Eleven, 2010); S. Nessi, 'Anti-suit and Anti-arbitration Injunctions in International Commercial Arbitration: The Swiss Approach' in D. Favalli et al., eds., Selected Papers on International Arbitration, SAA Series on International Arbitration, vol. 3, (Bern: Stämpfli, 2013) 163; M. Scherer & W. Jahnel, 'Anti-Suit and Anti-Arbitration Injunctions in International Arbitration: A Swiss Perspective' [2009:4] International Arbitration Law Review 66; H. Seriki, Injunctive Relief and International Arbitration (Abingdon, New York: Informa Law, 2015); M. Stacher, 'You Don't Want to Go There - Antisuit Injunctions in International Commercial Arbitration' (2005) 23:4 ASA Bulletin 640; O. Vishnevskaya, 'Anti-suit Injunctions from Arbitral Tribunals in International Commercial Arbitration: A Necessary Evil?' (2015) 32:2 Journal of International Arbitration 173.
J.D M. Lew, supra note 4 at 25.
E. Gaillard, 'Introduction' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (New York: Juris Publishing, 2005) 1.
S. Nessi, supra note 4 at 178.
 All. E. R. (EC) 484, para. 35.
S. Nessi, supra note 4 at 178; O. Vishnevskaya, supra note 4 at 193-194.
J.D.M. Lew, supra note 4 at 25-26.
E.g. R. Moloo, supra note 4 at 694-697; O. Vishnevskaya, supra note 4 at 197-198 (on mutual trust).
See E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (New York: Juris Publishing, 2005) 357. Article 5 of this Resolution reads as follows: 'Courts which grant anti-suit injunctions should be sensitive to the demands of comity, and in particular should refrain from granting such injunctions in cases other than (a) a breach of a choice of court agreement or arbitration agreement; (b) unreasonable or oppressive conduct by a plaintiff in a foreign jurisdiction; or (c) the protection of their own jurisdiction in such matters as the administration of estates and insolvency.' It may be noted that, despite the reference to the 'demands of comity', the Resolution is quite permissive and liberal in its acceptance of anti-suit injunctions.
A. Ali, K. Nesbitt, J. Wessel, supra note 4 at 13.
M. Stacher, supra note 4 at 644.
J.D.M. Lew, supra note 4 at 26; M. Stacher, supra note 4 at 641.
A. Ali, K. Nesbitt, J. Wessel, supra note 4 at 13; O. Vishnevskaya, supra note 4 at 183-184.
M. Stacher, supra note 4 at 641.
See A. Ali, K. Nesbitt, J. Wessel, supra note 4 at 12.
Gau Shau Co. v. Bankers Trust Co., 956 F.2d 1349 at 1354 (6th Cir. 1992).
See A. Ali, K. Nesbitt, J. Wessel, supra note 4 at 13.
Ibid. at 14.
Ibid. at 15.
J. Joy, supra note 4 at 52-53.
The Angelic Grace, C.A.  1 Lloyd's Rep. 87 at 89.
O. Vishnevskaya, supra note 4 at 175.
O. Vishnevskaya, supra note 4 at 175-176.
E. Gaillard, supra note 4 at 261.
F. Bachand, supra note 4 at 101-102.
Ibid. at 102.
O. Vishnevskaya, supra note 4 at 178.
E. Geisinger, 'Les relations entre l'arbitrage commercial international et la justice étatique en matière de mesures provisionnelles' La Semaine Judiciaire 2005 II 375 at 391; M. Wirth, 'Interim or Preventive Measures in Support of International Arbitration in Switzerland' (2000) 18:1 ASA Bulletin 31 at 31(32; M. Scherer & W. Jahnel, supra note 4 at 73.
M. Scherer & W. Jahnel, supra note 4 at 73.
S. Besson, 'Les mesures provisoires et conservatoires dans la pratique arbitrale - Notion, types de mesures, conditions d'octroi et responsabilité en cas de mesures injustifiées' in L'arbitre international et l'urgence (Brussels: Bruylant, 2014) 37 at 49.
O. Vishnevskaya, supra note 4 at 181.
E. Gaillard, supra note 4 at 261.
Ibid. at 237.
Ibid. at 239.
L. Lévy, supra note 4 at 119.
Ibid. at 120.
O. Vishnevskaya, supra note 4 at 178.
Ibid. at 180.
Unpublished, quoted in O. Vishnevskaya, supra note 4 at 178(179. It is not certain that the case referred to by Vishnevskaya really supports the proposition that permanent anti-suit injunctions are not available. In ICC case 16240, it would appear to be the fact that the requested measure was an 'anti-enforcement order' that was the most important reason for refusing the anti-suit injunction.
E. Gaillard, supra note 4 at 239-240.
M. Scherer & W. Jahnel, supra note 4 at 73; but see O. Vishnevskaya, supra note 4 at 187.
O.L. Mosimann, supra note 4 at 110 et seq.
S. Besson, supra note 33 at 50.
Ibid. at 51.
R. Moloo, supra note 4 at 685 ('Once it is found that an exclusive arbitration exists, an antisuit order should be granted to remedy the breach of the agreement in all circumstances.'); see also E. Gaillard, supra note 4 at 261-263.
L. Lévy, supra note 4 at 126.
O. Vishnevskaya, supra note 4,especially at 191 et seq.
Ibid. at 183; see also O.L. Mosimann, supra note 4 at 11 et seq.
O. Vishnevskaya, supra note 4 at 184-188 discussing the 'triple-identity test' (same subject matter, same cause of action and same parties); O L. Mosimann, supra note 4 at 114-115 also discussing identity of parties, claims and subject matter in dispute.
O.L. Mosimann, supra note 4 at 110-111; see also 112: the prerequisite of a prima facie valid arbitration agreement 'overlaps with the general prerequisite of the arbitral tribunal's jurisdiction over the parties and, specifically, to order interim measures'.
S. Besson, supra note 33 at 53.
Ibid. at 53-54; O.L. Mosimann, supra note 4 at 116.
S. Besson, supra note 33 at 54.
S. Besson, supra note 33 at 53-54; but see O.L. Mosimann, supra note 4 at 116, who refers to an unreported decision in ICC case 11761 where an anti-suit injunction was not granted inter alia because the applicant had waited too long before requesting the measure.
S. Besson, supra note 33 at 52.
O.L. Mosimann, supra note 4 at 118.
Ibid. at 119.
O. Vishnevskaya, supra note 4 at 189; L. Lévy, supra note 4 at 125-126.C
O. Vishnevskaya, supra note 4 at 190.
Ibid. at 195.
S. Besson, supra note 33 at 55, mentioning ICC case 12361 where the arbitral tribunal observed that 'arbitrators must endeavour to balance the relative harm to each party that may or may not flow from the granting or denial of the measures requested'.
O.L. Mosimann, supra note 4 at 120.
See especially O. Vishnevskaya, supra note 4 at 197 et seq. for a very restrictive approach to anti-suit injunctions by arbitral tribunals.
E. Gaillard, supra note 4 at 251-259; R. Moloo, supra note 4 at 690(693.
E. Gaillard, supra note 4 at 255; see also O.L. Mosimann, supra note 4 at 142, footnote 317.
E. Gaillard, supra note 4 at 255.
This interim award is reproduced in Interim, Conservatory and Emergency Measures in ICC Arbitration, 2011 Special Supplement, ICC International Court of Arbitration Bulletin (ICC, 2012) 13.
See final award of April 1997, (2000) 11:1 ICC International Court of Arbitration Bulletin 91; also E. Gaillard, supra note 4 at 256.
The decision is reproduced in Interim, Conservatory and Emergency Measures in ICC Arbitration, 2011 Special Supplement, ICC International Court of Arbitration Bulletin (ICC, 2012) 34.
E. Gaillard, supra note 4 at 257-258.
Ibid. at 258.
Ibid. at 258-259.
Ibid. at 259.
M. Scherer & W. Jahnel, supra note 4 at 70-71.
Ibid. at 71.
Ibid. at 71-72.
E. Gaillard, supra note 4 at 244(250; R. Moloo, supra note 4 at 686-687.
A. Carlevaris & J.R. Feris, supra note 3 at 35.
Ibid. at 36.
See Article 43(8) of the Swiss Rules, which provides that a decision of the emergency arbitrator 'shall have the same effects as a decision pursuant to Article 26' (which governs interim measures). The provision suggests that the same conditions apply to the granting of interim measures by the arbitral tribunal and by the emergency arbitrator.
See P. Tercier, 'Le référé pré-arbitral' (2004) 22:3 ASA Bulletin 464 at 473-474 and 477.
A. Carlevaris & J. R. Feris, supra note 3 at 34.
Ibid. at 35.
H. Seriki, supra note 4 at 82.
Case C-159/02, Gregory Paul Turner v. Felix Fareed Ismail Grovit et al. (27 Apr. 2004).
Ibid, § 31.
Ibid, §§ 27, 28.
Case C-185/07, Allianz SpA and Generali Assicurazioni Generali SpA v. West Tankers Inc. (10 Feb. 2009).
Ibid., § 34.
Case C-536/13, Gazprom OAO v. Lietuvos Respublika (13 May 2015).
Ibid., § 44.