Anti-arbitration injunctions the haldol for schizophrenia implications of Sabbagh Arbitration Blog

In sabbagh v khoury, the court of appeal confirmed the court’s jurisdiction to grant an anti-arbitration injunction (AAI) in exceptional cases where it would be vexatious and oppressive haldol for schizophrenia because of proceedings in england. Additionally, it held that it was not necessary for the exercise haldol for schizophrenia of that jurisdiction to show that england was forum conveniens.

Two claims were advanced in the lebanese arbitration in sabbagh, a “share claim” and an “assets claim”. The court held the share claim was within the scope haldol for schizophrenia of an arbitration agreement. As to the asset claim, the court had previously determined on the defendant’s stay application that it was not within the scope haldol for schizophrenia of the arbitration agreement notwithstanding the arbitrators’ decision to the contrary.

Having found that the share claim was within the scope haldol for schizophrenia of the arbitration agreement, the court found that it had no jurisdiction to grant haldol for schizophrenia an AAI in relation to that claim. The appropriate test was to consider whether if such a haldol for schizophrenia claim had been brought in english proceedings, the court would be required to stay those proceedings under haldol for schizophrenia section 9 of the arbitration act 1996 (AA 1996). If so, the court had no jurisdiction to grant an AAI.

More specifically, a stay must be granted where the claim is in haldol for schizophrenia respect of a matter which, under the agreement, is to be referred to arbitration unless the agreement is haldol for schizophrenia null and void, inoperative, or incapable of being performed. The correct characterisation of a “matter” was set out by popplewell J in sodzawiczny v ruhan haldol for schizophrenia at paragraph 43: the court should treat as a “matter” any issue which is capable of constituting a dispute or haldol for schizophrenia difference which may fall within the scope of an arbitration haldol for schizophrenia agreement.

Sabbagh is authority, then, for the proposition that an AAI will not be granted haldol for schizophrenia to the extent that the issues under consideration in the haldol for schizophrenia arbitration are issues which are capable of constituting a dispute haldol for schizophrenia or difference which may fall within the scope of the haldol for schizophrenia agreement, so long as the agreement is not null and void, inoperative, or incapable of being performed.

However, it appears that it is not the inverse of that haldol for schizophrenia test that is required before an AAI could in principle haldol for schizophrenia be granted, subject to the discretionary factors. In that regard, richards LJ cited andrew smith J’s comments in amtrust europe ltd v trust risk group haldol for schizophrenia spa. There must be “no room for argument… either because it is common ground between the parties or haldol for schizophrenia because of a previous determination”.

Richards LJ then concluded, at paragraph 113, that given the prior consideration of that issue on the haldol for schizophrenia stay application, it was within andrew smith J’s “category of a previous determination” and there could be no objection in principle to an haldol for schizophrenia AAI being granted in relation to the asset claim.

If the AAI applicant asserts that there simply was no haldol for schizophrenia agreement at all, then it may be that, as in a stay application, the court will determine the issue of whether there was haldol for schizophrenia such an agreement ( dallah real estate v ministry of religious affairs of the haldol for schizophrenia government of pakistan). Whether the court will determine scope is less clear. It is hard to imagine that, in the clearest of cases, it would refuse to do so.

Despite the new york convention and model law making some haldol for schizophrenia progress towards international harmonisation of arbitral law, and the international application of the kompetenz-kompetenz principle, the absence of explicit provision in either for or against haldol for schizophrenia aais has promulgated a disparity of approach internationally. Sabbagh does not reverse that trend.

Hamblen J, as he then was, granted the first AAI, which relied, at least partly, on grounds of vexatious and oppressive conduct, in claxton engineering v TXM. In doing so, he noted that the issue of aais was a matter haldol for schizophrenia of “great international debate and controversy”. Controversial, perhaps, because of the disputed incursion into the kompetenz-kompetenz principle.

The english position is now clear: the arbitral regime introduced by the new york convention and, domestically, the AA 1996, did not explicitly or impliedly displace the underlying jurisdiction under haldol for schizophrenia section 37 of the senior courts act 1981. For that reason, in exceptional cases, an AAI can be granted.

However, it is notable that in considering whether the AA 1996 haldol for schizophrenia precluded the court’s power to grant an AAI, richards LJ, at paragraph 57, drew particular attention to the deliberate substitution of “should” for “shall” in section 1(c) of the AA 1996 which adopted article 5 of the haldol for schizophrenia UNCITRAL model law (the principle of non-intervention). The intention was not to preclude intervention but to ensure haldol for schizophrenia caution.

This appears to solidify an english divergence from jurisdictions where haldol for schizophrenia the kompetenz-kompetenz principle and more stringent UNCITRAL regime have been adopted. For example, in france, the civil procedure code provides that a court shall decline haldol for schizophrenia jurisdiction when a dispute subject to an arbitration agreement is haldol for schizophrenia brought before a court, except if an arbitral tribunal has not yet been seized haldol for schizophrenia of the dispute and if the arbitration agreement is manifestly haldol for schizophrenia void or not applicable. In other jurisdictions, such as the USA, the position remains unclear.