#4985 - Re The Enforcement Of An Anti Suit Injunction - Conflict of Laws BCL

Re the Enforcement of an Anti-suit Injunction

Before the German Court of Appeal

Facts

In action brought by the petitioner against Mr G.¹on 26 September 1995 the Senior Master of the Supreme Court of Justice requested the service of the following documents on Mr G. pursuant to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters (“the Hague Convention”):

• originating summons;

• amended summons;

• order of Mr Justice T…,

• first and second affidavits of W.F.P.;

• exhibits;

• translations;

• duplicates.

The petitioner had sought a declaration from the said court in London that a dispute which has arisen between the petitioner and Mr G. out of an agreement dated 28 July 1994 can only be heard before the London Court of International Arbitration.

The order of Mr Justice T. is an order of 6 September 1995 (which does not set out the grounds on which it is based) containing (according*322to the translation produced by the petitioner),inter alia, certain injunctions whereby Mr G. was to be prohibited from:

1. continuing the claim which he had brought against the petitioner before the Landgericht (District Court) Krefeld

2. ….

3. ….

By a ruling dated 19 October 1995 the German Central Authority returned the request of 26 September 1995 without taking action, on the grounds that, in so far as the order of 6 September 1995 contained an interlocutory injunction addressed to the person on whom service was to be effected, service was likely to infringe the sovereignty of Germany.

The petitioner here prays that the respondent be ordered to grant the request of the Senior Master of the Supreme Court of Justice … of 26 September 1995 for service by way of mutual assistance in civil matters pursuant to the Hague Convention.

Holding

Infringement of German Sovereignty

[12] Service of the order of 6 September 1995 cannot, pursuant to Article 13(1) of the Hague Convention, be required because service is likely to infringe the sovereignty of Germany. The said order is in substance an interlocutory order.

[13] The purpose of the contested injunctions, in the form of antisuit injunctions, is provisionally to prevent the continuation of the actions²which have been commenced in Germany before the Landgericht Krefeld by Mr G. in connection with the agreement of 28 July 1994, in order to safeguard the exclusive jurisdiction of the London Court of International Arbitration alleged by the petitioner.

[14] However, such injunctions constitute an infringement of the jurisdiction of Germany because the German courts alone decide, in accordance with the procedural laws governing them and in accordance with existing international agreements, whether they are competent to adjudicate on a matter or whether they must respect the jurisdiction of another domestic or a foreign court (including arbitration courts). Furthermore, foreign courts cannot issue instructions as to whether and, if so, to what extent (in relation to time-limits and issues) a German court can and may take action in a particular case.

Rejection of the view that the injunction is not directed at the German Court

[15] The fact that the contested antisuit injunctions are not directly addressed to the German State or German courts, but to Mr G. as the plaintiff in the actions already instituted by him and in potential further actions in Germany, cannot affect this decision, for the following reasons.

[16] Firstly, under German procedural law, where proceedings have already been instituted the courts must rely on the co-operation of the parties. In particular, if the parties fail to co-operate, this may, for reasons which need not be considered in detail here, bring the action to a standstill, thus achieving the aim of the anti-suit injunctions described above, so that the injunction addressed to the party is quite likely to influence directly the work of the German courts and is, in effect, equivalent under certain circumstances to an order addressed directly to the court (which would no doubt also be inadmissible according to the Anglo-Saxon concept of justice).

[17] Quite apart from this, the sovereignty of Germany would also be generally infringed if, as in the present case, a foreign court issued instructions to the parties to an action before a German court as to how they are to act or to enter appearance and what applications they are to make. Judicial proceedings are guaranteed to be duly conducted in accordance with the rule of law only if the parties and their representatives are able, without any restriction, to place before the court all the facts they consider necessary for assessment by the court and to make the applications required by the procedural situation, and no further demonstration of this is necessary. These rights are safeguarded by the German procedural codes and, in many respects, by the Basic Law. The courts must give effect to these rights. Instructions from foreign courts to the parties concerning the manner in which the proceedings are to be conducted and their subject-matter are likely to impede the German courts in fulfilling this task.

Therefore the authorities who are responsible for handling requests for...