It has long been debated whether English courts, under EU law, are permitted to serve
anti-suit injunctions to restrain parties from commencing legal proceedings in breach of an
arbitration agreement. In 2009, the European Court of Justice answered this question in
the negative. However, the broad approach of the Opinion of Advocate General Kokott as
followed by the European Court of Justice has left many unanswered questions. This article
seeks to address one of them: whether an arbitral tribunal is bound, following the decision
of the European Court of Justice, to apply foreign judgments which directly concern the
subject matter or procedural issues in dispute. From the tenor of the judgment and Opinion,
it seems relatively certain that this question must be answered in the positive. However,
the more difficult issue is what effect this will have on arbitral practice and whether there
is now an urgent need for change in relation to the arbitration exception found in Regulation
44/2001. After considering the negative results for arbitration if tribunals do find
themselves bound to apply foreign judgments in conformity with Regulation 44/2001, this
article seeks to consider the suggestions of the Commission as to how such issues can be
resolved, working up from the simple starting point that the arbitration exception in the
Regulation now requires change.

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