Re The Enforcement Of An Anti Suit Injunction Notes

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...

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