Referring court and Member State
Lithuania, Third Instance, Lietuvos Aukščiausiasis Teismas
Summary
The case was referred to the CJEU in a Lithuanian appeal brought by Gazprom, established in Russia, against the refusal to recognise and enforce an arbitral award in Lithuania. Lietuvos dujos AB was a company formed under Lithuanian law doing business in conveying gas which it bought from Gazprom, distributing it in Lithuania and managing the gas pipelines and transporting gas to the Region of Kaliningrad of Russia. Its largest shareholders were E.ON Ruhrgas International, a German company, Gazprom and the Lithuanian State. Gazprom concluded a shareholders’ agreement with E.ON and the State Property Fund acting on behalf of the Lithuanian State, the fund subsequently being replaced by the Lithuanian Ministry of Energy. That agreement contained an arbitration clause. In 2011, the Lithuanian State made an application to the Vilnius Regional Court seeking initiation of an investigation in respect of the activities of Lietuvos, the company’s general manager and Russian nationals appointed to its board of directors by Gazprom. According to Gazprom, that application breached the arbitration clause and it filed a request for arbitration against the Ministry at the SCC in Sweden. In its award, the arbitral tribunal declared that the arbitration had been partially breached and ordered the Ministry, in particular, to withdraw or limit some of the claims which it had brought before that court. Later on, the court held that an application for investigation of the activities of a legal person fell within its jurisdiction and was not arbitrable under Lithuanian law and ordered the investigation be initiated. This decision was appealed against by Lietuvos and other persons to whom the investigation was related before the Lithuanian Court of Appeal while Gazprom applied to that court for recognition and enforcement of the arbitral award in Lithuania. In its first order, the Court of Appeal refused Gazprom’s application by holding that the arbitral tribunal could not rule on an issue already raised before and examined by the Vilnius Regional Court and that, in ruling on that issue, the arbitral tribunal had not observed Art V(2)(a) of the New York Convention. In its second order, it dismissed the appeal and confirmed that the Lithuanian courts had jurisdiction to hear that case. Both orders were appealed against on a point of law before the Supreme Court of Lithuania which referred some questions to the CJEU concerning whether recognition and enforcement of that arbitral award classified as an anti-suit injunction may be refused on the ground that the exercise by a Lithuanian court of the power to rule on its jurisdiction would be restricted after such recognition and enforcement. First, the CJEU noted that arbitration is excluded from the scope of Brussels I. Then it referred to its judgment in C-185/07 and pointed out how these two preliminary rulings differ from each other. The CJEU observed that there was no question of an infringement of the principle of mutual trust as the order had been made by an arbitral tribunal, not by a court of a MS. It also added that the New York Convention does not relate to a ‘particular matter’ within the meaning of Art 71(1) of Brussels I since that article governs only the relations between Brussels I and conventions dealing with particular matters within the scope of Brussels I. The CJEU held that Brussels I does not preclude a MS’s court from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that MS, since it does not govern the recognition and enforcement, in a MS, of an arbitral award issued by an arbitral tribunal in another MS. Although the AG tried to re-open the issue of intra-EU anti-suit injunctions given by courts to uphold arbitration agreements, the CJEU did not take up that issue confining itself to allowing anti-suit injunctions made by arbitral tribunals.