Author: Lynn Abell**
Published: August 2013
Description:
I. INTRODUCTION
In its 2009 West Tankers decision, the European Court of Justice (“ECJ”) rendered a much-critiqued opinion holding that anti-suit injunctions issued in one EU Member State that prevent a party from going before the courts of another Member State are not permissible under Brussels Regulation 44/2001/EC (“2001 Brussels Regulation”), even when such an injunction relates to arbitration. Not coincidentally, the party contesting the use of the injunction was an Italian insurer, Allianz SpA (“Allianz,” formerly known as Ras Riunione Adriatica di Sicurta SpA), which had filed suit in a Syracuse court after learning that its insured had commenced arbitration proceedings in London. While it is arguable as to whether Allianz filed in an Italian court merely to delay and complicate the arbitration proceedings or rather in a good faith attempt to secure its rights under Italian law, the whole West Tankers fiasco has nonetheless created much debate over the so-called “Italian Torpedo,” a procedure in which one (often unscrupulous) party files suit in an unsuitable and notoriously slow Member State in order to force more appropriate Member State courts to stay any subsequent actions to comply with the 2001 Brussels Regulation and the principle of lis pendens. Although many commentators have attributed the deadliness of a torpedo action to infamous Italian court delays, Italian courts’ refusals to immediately defer to the arbitrators’ determination of competence and the lack of an efficient mechanism for referring parties back to arbitration have also contributed to Italy’s reputation as a torpedo jurisdiction with respect to arbitration in particular.
*Notes & Comments
**J.D., May 2013, The University of Texas School of Law. Special thanks to Professors Alan Scott Rau and Timothy J. Tyler of the UT Law faculty, as well as Avv. Eleonora Mattioli and the professors of the UT Department of French and Italian for their inspiration and assistance with this article. (All translations, errors and omissions are my own.)