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Arbitration Super-Injunctions
Whilst the English tabloid press works itself into a frenzy
over super injunctions to protect the privacy of the
rich and famous from exposure and ridicule over their
adultery and other indiscretions, the Commercial
Court and the Court of Appeal are steadily rening the
super-injunction of the arbitration eld: the anti-suit
injunction.
The latest word has come from the Court of Appeal
in AES Ust-Kamenogorsk Hydropower Plant LLP v UstKamenogorsk Hydropower Plant JSC. The case concerned
a 20-year concession to operate hydroelectric facilities
in Kazakhstan. The Claimant was the operator of the
concession and the Defendant, the owner. The owner
commenced proceedings seeking information about
the value of the concession assets.
The concession agreement was governed by the law
of Kazakhstan but contained an arbitration agreement
governed by English law[1] and providing for arbitration
in London under ICC rules. The owner brought a claim
against the operator in the Kazakhstan court for further
information about the value of the concession assets.
The operator applied to dismiss that claim on the basis
of the obligation to arbitrate in London. The Kazakhstan
court rejected the operator's application. The operator
then sought a declaration in the instant proceedings
from the English court that the owner was bound to
submit disputes, including disputes as to the
eectiveness of the arbitration clause, to arbitration,
and an anti-suit injunction to prevent the owner from
litigating disputes within the arbitration clause in the
courts of Kazakhstan.
By the time of the hearing before the judge, the claim
for further information in the Kazakhstan proceedings
had been withdrawn. However, the operator remained
concerned about the risk of further breaches of the
arbitration agreement and wished to maintain the
injunction. At the hearing, the owner challenged the
court's jurisdiction to grant the injunction and also
sought to set aside the order for service of the
proceedings out of the jurisdiction. The judge dismissed
the owners challenge to the court's jurisdiction and
granted a nal anti-suit injunction and a declaration.
He held that the court could not intervene under section
44 of Arbitration Act 1996 (as there was no actual or
intended arbitration to which it could apply) but
accepted that the court had jurisdiction under section
37 of Senior Courts Act 1981.
[1] Having provided for a London seat the law of arbitration agreement (as
opposed to the underlying contract) is English : C v D [2007]