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continuing with the proceedings in Spain.Again it was said
that mutual trust between Convention countries carried theday and required the court that was ‘first seised’ with theproceedings, the Spanish court, to proceed.The combined result of the two cases was fairly clearly tobring to an end the possibility of obtaining anti-suitinjunctions to restrain court proceedings in Europe,certainly in cases where they would previously have beengranted on the ground either that the foreign proceedingswere in breach of an exclusive jurisdiction clause in thecontract or on the ground that they were vexatious and
oppressive.But, as there was still a desire to hold parties to their
bargains, a lot of ingenuity went into how to avoid theeffect of Gasser and Turner v. Govit.If your contract had aclause in it providing for exclusive jurisdiction in theEnglish High Court over disputes arising under thecontract, you would, more likely than not, want things to
stay that way.One suggestion made at the time was that if clauses like
exclusive jurisdiction clauses were not going to stand up inthe new Europe, then the next best thing was to put a clausein the contract providing that disputes had to be resolved byarbitration in England.
This was so because the European Council Regulation,which superseded the Brussels Convention and which isknown as Brussels1, provides specifically that it does notapply to ‘matters relating toarbitration’. So if you had amatter relating to arbitration, perhapsyou could insist on itsgoing to arbitration rather than a foreign court.It was thought, therefore, that despite the two cases in the
European Court of Justice, an anti-suit injunction mightstill be able to be obtained in an English court to restrain aparty from continuing with foreign court proceedings if ithad been agreed in the contract that all disputes had to besubmitted to arbitration.
Or would it still be the case that even if you did have anarbitration clause in your contract, the concern for mutualtrust and confidence would be so strong that it wouldrequire that the court first seised with the matter, theforeign court, be allowed to go on with the proceedings?
It was that question that came before the Court of Appeal inthe Through Transport Case.The Facts in Through Transport
An Indian merchant shipped goods to Finland onThe Hari Bhum and insured them with NewIndia. When the goods were lost, New India paidthe merchant’s claim and was thus subrogated tothe claim the merchant had against the shipperwho had lost the goods and who was, indirectly,
insured with Through Transport.Under that claim, New India naturally got thebenefits of the merchant’s contract, including theright to sue the carrier under a Finnish statute.This it did, by suing its insurer Through
Transport, for the carrier was bankrupt.
But that was of immense concern to ThroughTransport. It did not want to battle it out in thecourts in Finland, especially as the disputes
clause in the insurance policy under which NewIndia was suing, said that all disputes had to beresolved by arbitration in London.Through
Transport wanted to keep the dispute in Londonand wanted it dealt with by arbitration.It succeeded with this argument before the Judge
at first instance, but the decision by the Court ofAppeal was a mixed blessing. The company wasfound to be right on the law, for the court held
that an arbitration clause would be enforced, butwrong on the facts and it fai本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。