Originally from American Review of International Arbitration - ARIA

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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.1 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.2 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.3 Although many commentators have attributed the deadliness of a
torpedo action to infamous Italian court delays,4 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.