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10 J. Int'l Disp. Settlement 1 (2019)

handle is hein.journals/jloildte10 and id is 1 raw text is: Journal of International Dispute Settlement, 2019, 10, 1-22 doi: 10.1093/jnlids/idy001 Advance Access Publication Date: 26 March 2018 Article The Right to Be Unheard: Recognition and Enforcement of Anti-Suit Injunctions Issued by Arbitrators in the EU Pawel Marcisz* and Aleksandra Orzel-Jakubowska** ABSTRACT The article discuses recognition and enforcement of anti-suit injunctions issued by ar- bitral tribunals in the EU, taking into account limitations on arbitrators' power to issue the injunctions as well as their legal effects in various jurisdictions. We critically evalu- ate the consistency of the CJEU's approach to anti-suit injunctions as presented in West Tankers and in Gazprom. To this end, we compare effects of anti-suit injunctions from state courts and these from arbitral tribunals on the efficiency of EU law and the fundamental rights that it protects. Special regard is paid to the right to legal protection as enshrined in Article 47 of the Charter of Fundamental Right. 1. INTRODUCTION Several months before the Court of Justice of the European Union (CJEU) rendered a judgment in West Tankers,'Thomas Raphael wrote: If the European Court of Justice does hold that the English Court cannot grant anti-suit injunctions to enforce an arbitration clause, one obvious alternative option for the injunction claimant is to seek an analogous order from the arbitrators. This author also noted that there was a growing number of decisions reported where arbitrators have granted anti-suit injunctions.3 * University of Warsaw, Faculty of Law and Administration, Department of European Law. Email: p.marciszcuw.edu.pl ** University of Warsaw, Faculty of Law and Administration, Department of Civil Procedure. Email: a.orzelcwpia.uw.edu.pl. The research presented in this article was conducted at LSE during the ETIUDA scholarship (No DEC-2016/20/T/H5/00408) financed by the Polish National Science Centre. I would like to thank Professor Jan Kleinheisterkamp for his kind support in conducting my research at LSE. 1 CJEU Case C-185/07 Allianz SpA, Generali Assicurazioni Generali SpA v West Tankers Inc. [2009] ECLI:EU:C:2009:69. See also H Seriki, Injunctive Relief and International Arbitration (Informa Law 2015) 55ff. 2 T Raphael, The Anti-Suit Injunction (OUP 2008) 285 (512.26). 3 ibid 197, ¶7.41. Some authors use the term 'antisuit order' to refer to an anti-suit injunction issued by an arbitral tribunal, to distinguish them from anti-suit injunctions issued by state courts. But in this article, we © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please e-mail: journals.permissions@oup.com . 1