In National Navigation Co v Endesa Generacion SA [2009] EWHC 196 (Comm), Gloster J held that a dispute was referable to arbitration in London notwithstanding the existence of a Spanish court decision to the contrary.

In Gloster J's judgment, although the determination of the Spanish court was a Brussels Regulation judgment, it was not required to be recognised under Article 33 of the Regulation in proceedings in another member state which were not Regulation proceedings. The application before her was for a declaration as to the applicability of an arbitration agreement and, as such, fell within the arbitration exception in Article 1(2)(d) of the Brussels Regulation. There was therefore no requirement for the Spanish court judgment to be recognised in this instance.

In the alternative, the judge determined that it would be contrary to public policy in England to recognise a judgment, such as the Spanish decision, obtained in breach of an arbitration agreement that was valid by its proper law. A clear obligation existed under English law for an English court to give effect to such an arbitration agreement.

The tension between the Brussels Regulation and the New York Convention, which has recently been brought to the fore by the ECJ decision in West Tankers (see Legal update, West Tankers ECJ judgment: full report), is very apparent in this decision of the Commercial Court. Whether the ECJ would agree with the judge that a declaration that an arbitration agreement is applicable would not offend principles of comity, in circumstances where an anti-suit injunction on the same grounds would, is a matter for debate. With the consultation period for the Green Paper reviewing the Brussels Regulation drawing to a close (see Legal update, Green paper on the application of the Brussels Regulation), and amendment to the Regulation a possibility, this tension is likely to continue to be a popular topic of discussion amongst academics and practitioners in the field for some time to come.

For further discussion of anti-suit injunctions, see Practice note, Remedies for breach of the arbitration agreement: anti-suit injunctions.