In 1999, Gazprom OAO (Gazprom), a Russian gas producer and supplier, entered into an agreement with Lietuvos dujos AB (LDAB), a Lithuanian gas distributor. In 2011, a dispute arose between LDAB and one of its shareholders, the Ministry of Energy of Lithuania, which alleged that LDAB, its managing director and two other directors, both of whom had been appointed by Gazprom, had not acted in the interests of LDAB. The Ministry of Energy brought an action in the Lithuanian courts.

Gazprom and the Ministry of Energy were both shareholders in LDAB and were parties to a shareholders' agreement that contained an arbitration clause providing for arbitration in Stockholm, Sweden. Gazprom claimed that the action in the Lithuanian courts breached the arbitration clause and asked the arbitral tribunal to order the Ministry of Energy to withdraw its claims. The tribunal granted the application in part.

Gazprom brought an action before the Lithuanian courts to recognise and enforce the arbitral award. In response, the Ministry of Energy argued that the arbitral award constituted an anti-suit injunction and its recognition would be contrary to the recast Brussels Regulation as interpreted in West Tankers.

The Lithuanian court referred the following two questions to the ECJ:

The AG did not consider that, in light of West Tankers, the arbitral award would be contrary to the recast Brussels Regulation.

West Tankers. In West Tankers, the High Court issued an anti-suit injunction restricting the claimants from pursuing proceedings before the Italian courts, on the basis that there was an arbitration agreement covering that dispute. The House of Lords made a reference to the ECJ asking whether an anti-suit injunction in support of arbitration was consistent with the Brussels Regulation. The ECJ held that under Article 1(2)(d) of the Brussels Regulation (Article 1(2)(d)), national proceedings in support of arbitration are outside the scope of the Brussels Regulation; however, the effect that those proceedings have on other proceedings that fall within the scope of the Brussels Regulation needed to be considered.

The ECJ therefore went on to examine whether the Italian proceedings fell within the scope of the Brussels Regulation. It held that if the subject matter of the dispute comes within the scope of the Brussels Regulation, the fact that there is a preliminary issue concerning the validity of an arbitration agreement does not mean that the proceedings are caught by the Article 1(2)(d) exception. The anti-suit injunction was therefore held to be incompatible with the Brussels Regulation as it prevented the Italian courts from ruling on their own jurisdiction.

In Gazprom, the AG drew parallels with West Tankers on the basis that the arbitral award undermined the Lithuanian court's ability to determine its own jurisdiction. However, the AG then went on to consider the recast Brussels Regulation. He stated that, although the courts were not required to apply it until 10 January 2015, and then only to proceedings or other relevant matters instituted on or after that date, Recital 12 of the recast Brussels Regulation (Recital 12) explains how Article 1(2)(d) should have been interpreted.

Firstly, the AG considered that the second paragraph of Recital 12, which states that a ruling on the validity of an arbitration agreement, regardless of whether it was a principle or an incidental issue, does not fall within the scope of the recast Brussels Regulation, means that proceedings that include an incidental question as to the validity of an arbitration agreement are also excluded from the scope of the recast Brussels Regulation. The AG therefore considered that had West Tankers been brought under the recast Brussels Regulation, the Italian proceedings would not have come within its scope and the anti-suit injunction would not have been held to be incompatible with it.

Secondly, the AG noted that the fourth paragraph of Recital 12 excludes the recognition and enforcement of arbitral awards from the scope of the recast Brussels Regulation, as well as ancillary proceedings relating to arbitration. The AG concluded that this indisputably covers the case in Gazprom and went further by stating that ancillary proceedings include anti-suit injunctions issued by national courts.

Principle of mutual trust. The AG considered that Gazprom is distinguishable from West Tankers on the basis that it concerns an arbitral award, rather than an anti-suit injunction issued by a national court. Arbitral tribunals are not subject to the Brussels Regulation and are not bound by the principle of mutual trust applicable between courts. Instead, injunctions issued by arbitral tribunals fall solely within the scope of the New York Convention (the Convention).

The AG took the second question as asking whether the concept of public policy enshrined in Article V(2)(b) of the Convention means that a court is not required to recognise and enforce an arbitral award if it limits that court's right to decide on its own jurisdiction. The AG answered this question in the negative.

This is the first official indication of how national courts ought to treat anti-suit injunctions issued by arbitral tribunals. While it is a positive development in that it suggests that arbitral tribunals can issue effective anti-suit injunctions within the EU (despite West Tankers, which remains good law pending the ECJ's decision in Gazprom), until the ECJ hands down its decision, the position is unclear. While the ECJ usually follows an AG's opinion, in this case it would not be entirely unexpected for it to decline to do so, given the AG's decision to rely on the recast Brussels Regulation, which did not apply at the time, and the other options that are open to the ECJ, such as distinguishing West Tankers or simply deciding that the questions are not admissible.