Proper Place to Grant an Anti-Suit Injunction: A Perspective from France

This post was written by Etienne Farnoux, who is Professor of Private Law at the University of Strasbourg. It is the third contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. The previous contributions, by Manuel Penades and Faidon Varesis can be found here and here, respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

This brief commentary focuses on the discussion, in the UKSC UniCredit decision, of several points of French law revolving around the issue of whether French courts could be regarded as an available forum to issue an anti-suit injunction (for a broader presentation of the case, see the previous post by U. Grusic, and the other contributions to this online symposium ; see also, in French and before the UKSC decision, V. Carriou, C. Debourg, A. Lauvaux, Rev. arb., 2024. 285). This discussion arises as part of the more general issue of the ‘proper place’ to order an ASI, with regards to an arbitration with a foreign seat (here in France).

1. The Limited Scope of Supervisory Jurisdiction

When the arbitration agreement is governed by English law, the Supreme Court relies on ‘a presumption which treats the courts of England and Wales as the proper place in which to bring the claim for an anti-suit injunction unless the fact that the arbitration has a foreign seat makes it inappropriate to do so’ [93]. In response to a party’s allegation that the proper place was France, the Supreme Court points out that while ‘the courts of the place where an arbitration has its seat have the sole responsibility for supervising the arbitration and the primary responsibility for supporting the arbitration process […,] the power to grant such relief is not an aspect of either the supervisory or the supporting jurisdiction of the English court’ [96]. Since ‘no arbitration proceedings have been commenced or proposed’ [98], the supervisory responsibility of the courts of the seat of arbitration is not at stake. The mere fact that ‘in relation to any arbitration which may in future be brought, the parties have chosen to be subject to the supervisory jurisdiction of the French courts is not itself a reason why an English court cannot or should not uphold the parties’ bargain by restraining a breach of the arbitration agreement’ [100].

According to the Supreme Court, the only circumstance, at least in the present case, which would point to the contrary would be ‘where the exercise by the English court of its power to grant an anti-suit injunction would or might produce a clash with any exercise of jurisdiction by the French courts so as to give rise to any issue of comity’ [101]. This would not be the case here as the UKSC finds ‘no possibility that the French courts could be seized of the matter’ [101] for two reasons. First, ‘French courts have no power to grant anti-suit injunctions’ [101]. Second, ‘French courts would not have jurisdiction to determine a claim of any kind brought by UniCredit complaining of a breach by RusChem of the arbitration agreements’ [101].

2. Is it Really Impossible for French Courts to Grant an ASI?

The first point was not contested in Unicredit, and statements can be found to the same effect in the Commerzbank and Deutsche Bank cases. For instance, it was not disputed in the EWCA Deutsche Bank case that ‘French law does not have the ability to grant an ASI as part of its procedural toolkit’ [40]. This description of French positive law is certainly backed by extensive authority. While French law knows no shortage of procedural tools to overcome a party’s resistance to arbitration proceedings (negative effect of the competence-competence principle, for instance, or refusal to recognize a foreign judgment setting aside an arbitration clause), the view is generally held that enforcement of the arbitration agreement will usually not be achieved through injunctive relief and there is indeed no French law provision regarding ASIs, or a close equivalent. That said, there is no provision prohibiting French courts from granting an ASI either and the Cour de cassation has in past shown a willingness to issue something akin to an antisuit injunction in the context of international insolvency (Cour de cassation, première chambre civile, 19 November 2002, Banque Worms, n°00-22.334).

This shows the absence of philosophical opposition of French law to the institution and the mere fact that this solution has not yet been extended to arbitration and the protection of an arbitration clause does not mean that it will never be. For one thing, there seems to be growing support for such an extension from both practitioners and academics. Plus, in the past, the Cour de cassation has agreed to grant recognition to an American ASI protecting the jurisdiction of a foreign court designated by a forum selection agreement against proceedings brought before French courts themselves (Cour de cassation, première chambre civile, 14 October 2009, In Zone Brands, n° 08-16.369 and 08-16.549). Surely, recognizing a foreign ASI (even one targeting French proceedings) and issuing one are two different things, but one of the arguments justifying the solution in this last case according to the Cour de cassation was that the injunction aimed at ‘ensuring compliance with the agreement conferring jurisdiction entered into by the parties’.

One does not really see why French courts should refuse to lend their support directly to such a legitimate goal and thus enforce what should be the principal solution under French law, which is specific performance. This would of course be limited to ASIs directed against proceedings in non-EU States, as long as the Court of Justice sticks to its infamous West Tankers solution. Having come nonetheless to the conclusion that ASIs were unavailable in France, the UKSC could have stopped there as the position of English courts as the proper court seemed sufficiently justified (see for instance EWCA Deutsche Bank, [40]), but it did not.

3. The Convoluted Rules on Jurisdiction of French Courts to Order Interim Relief

It is indeed the second point that is developed by the Supreme court: ‘the fact that an arbitration has a French seat does not, of itself, confer jurisdiction on any French court to order interim relief’ [102]. Without getting too much into the weeds here, the French rules on the international jurisdiction of courts to order interim relief in the context of arbitration are somewhat circumvoluted.

The starting point is that Article 1449 of the Code de procédure civile empowers French courts to grant interim relief even if an arbitration agreement ‘exists’ but without laying out the rules regarding international jurisdiction. French academia, by and large, holds the view, reflected in the Unicredit decision, that when establishing international jurisdiction under Article 1449 of the Code de procédure civile, absent explicit rules of international jurisdiction, French courts are prompted to fall back on the by default international extension of the rules regulating territorial jurisdiction (or venue). In this system, the seat of the arbitral tribunal is insufficient to justify the jurisdiction of French courts to grant interim relief (and no ordinary rule would grant jurisdiction to French courts in the configuration of the case).

While that position can claim some support in the case law, it should also be said that the principle of international extension of the territorial rules of jurisdiction has never been construed as a hard and fast rule. The Cour de cassation is acutely aware of the essential difference between territorial and international jurisdiction and regularly underlines that in some cases the principle requires adaptation to account for the particularities of international relations. It would not be immensely surprising if, when considering international jurisdiction regarding interim relief, the Court considered giving a role as a connecting factor to the seat of the arbitral tribunal.

This in turn leads to a question: would such an adaptation be called for? The answer might depend on the type of interim relief sought. If an equivalent to an ASI were available in French law, it would seem strange not to grant international jurisdiction accordingly to French courts when the seat of the arbitral tribunal is in France. Several arguments point in that direction. First, the comparison with English law shows that the seat of arbitration in England certainly justifies jurisdiction to grant an anti-suit injunction. Second, the rules regarding the international jurisdiction of French courts acting as the supporting authority for arbitration may seem to be more adequate than the by default extension of territorial jurisdiction rules.

The jurisdiction of French courts as supporting authority, or ‘juge d’appui’, is provided for at Article 1505 of the Code de procédure civile. It includes a list of four alternative connecting factors: the seat of arbitration is in France; the parties have agreed on French procedural law to apply to arbitration proceedings; the parties have expressly agreed on the jurisdiction of French courts to rule on disputes relating to the arbitral proceeding; the parties are exposed to the risk of denial of justice. At least the first connecting factor would have granted jurisdiction to French courts in the present case.

The reason why these more adequate heads of jurisdiction are usually not discussed in the context of ASIs is because of the assumption that such a measure (if it were available) would be outside of the natural role of French courts acting as supervisory authority. Such a conclusion might not be unavoidable. Admittedly, the role of the juge d’appui is traditionally limited to difficulties in the constitution of the arbitral tribunal, but granting an ASI does contribute to giving full effect to the parties’ agreement to arbitrate while a torpedo action certainly endangers its efficiency. Even if such an injunction fell outside of the limited powers of the juge d’appui and was to be granted under Article 1449 of the code de procedure civile, the seat of the arbitral tribunal would undeniably constitute a more appropriate connecting factor than the mere extension of the rules of territorial jurisdiction.

4. A Cooperative Conception of the Supervisory Authority

Finally, it is convincing that, as concluded by the Supreme Court, ‘even if the French courts were an available forum, there is no reason which can be said to make it inappropriate for an English court to restrain a breach of the arbitration agreements by granting an injunction’ [104]. French law does not have an exclusive conception of the role of the supporting authority but one aimed at the success of the arbitral proceeding, and the enforcement of the commitment to arbitrate taken by the parties. This is illustrated, for instance, by the favorable treatment a foreign ASI protecting an arbitration agreement would likely receive in the French legal system, following the In zone Brands case. It also derives from the delimitation of the jurisdiction of the juge d’appui. The role of French courts acting as supporting authority is not limited to arbitral tribunals with a seat in France. Particularly the last item on the list (the risk of a denial of arbitral justice, see for instance Cour de cassation, première chambre civile, 1 February 2005, NIOC, n° 01-13.742 and 02-15.237), shows that the point is to allow arbitration to proceed rather than focusing exclusively on the location of the seat.