Enforcement of Declarations and conflicting decisions: West Tankers still afloat

The case of West Tankers Inc v Allianz SpA and Generali Assicurazione Generali SpA has once again come before the courts on the issue of enforcement. In 2009 the West Tankers case went before the European Court of Justice (ECJ) who held that an anti-suit injunction, issued by an English court to prevent court proceedings progressing in another Member State, was contrary to EC Regulation 44/2001 (the ‘Brussels I Regulation’). The consequence of that ruling is that West Tankers Inc now has an award in its favour in London but risks having a conflicting judgment in the Italian courts. This recent decision of the English High Court in West Tankers addresses how an arbitrator’s award can be protected in the absence of an anti-suit injunction. In this article we set out the facts relating to the West Tankers dispute and the court’s recent decision that, in certain circumstances, it will recognise an arbitrator’s award in declaratory terms. The court has taken a pragmatic rather than logical approach to the problem of conflicting decisions. However, the thorny question of ‘what happens when enforcement is sought of a conflicting regulation judgement where there is already an arbitration award?’ was side-stepped. The issue has been considered by the European Commission in a recent Proposal and by the European Scrutiny Committee of the UK Parliament, in which it expressed reservations regarding the approach proposed by the European Commission.