British injunction

下面为大家整理一篇优秀的paper代写范文- British injunction，供大家参考学习，这篇论文讨论了英国禁诉令。禁诉令最早起源于英国，是英国法院对本国法院拥有属人管辖权的当事人签发的，禁止其在外国法院诉讼的命令。禁诉令是应对国际平行诉讼中产生的管辖权积极冲突的一种有效手段，具有强势、快捷的特点，能有效防止当事人择地行诉、外国法院的过度管辖等问题。但随着《布鲁塞尔公约》体系的建立，英国的禁诉令在欧盟国家的使用受到越来越严厉的限制，禁诉令的发展也受到前所未有的挑战。

Injunction originated from the United Kingdom. It is an order issued by a British court to a party that has personal jurisdiction over a domestic court and prohibits him from filing a lawsuit in a foreign court. Injunction is an effective means to deal with the active conflict of jurisdiction arising from international parallel litigation. It is strong and fast, and can effectively prevent the parties from choosing the place for litigation and the excessive jurisdiction of foreign courts. However, with the establishment of the "Brussels convention" system, the use of injunction in eu countries is increasingly restricted, and the development of injunction is challenged unprecedentedly.

An injunction is a restrictive order issued by a court of a country against a party who is under the jurisdiction of the court of that country, preventing him from initiating or proceeding in a foreign court an action that has already been filed or is the same or similar to a lawsuit or arbitration proceeding pending in the court of that country. The legal basis for the issuance of an injunction by a British court is article 37 of the Supreme Court act of 1981: "in any case, the high court may order an injunction in the form of an injunction so long as the court considers it fair and convenient to do so". V. ban as a positive conflict of jurisdiction of an effective solution, can be traced back to the 14th century Britain, was first released to the parties to the court of chancery to limit its command in the rights of ordinary court, through constant practice, especially the development of the case, in the 19th century has developed to be used to limit the parties of litigation in foreign countries. The consequence of violating the injunction is that the person is liable to contempt of court, whether in prison or fine, and is unlikely to set foot on British soil again. As a way to solve the international parallel litigation, injunction is very effective and fast for the realization of the interests protected by the national courts, whether it is the regulation of the litigants' choice of place for action or the prevention of excessive jurisdiction of some courts.

The British high court, Lord Goff, has summed up the four conditions under which British courts issue injunctions. An injunction is directed against a party rather than a foreign court; the injunction can only be used to accept the parties under the jurisdiction of the British court, and for the parties, the injunction is a necessary remedy; This power must be exercised with caution because the injunction is suspected of infringing upon the judicial sovereignty of another country.

Yang Liangyi Sir In the book "ban", explains: "the UK court issued the ban will not just because tube others' business or go to generations, but should be profitable, is usually about the country's economic interests, the general principle that the court has belong to personal jurisdiction to the applicant, have jurisdiction over the issuing ban." On the surface, the injunction is issued against the parties, and the direct effect is that the signee dare not Sue or continue the lawsuit in a foreign court, which indirectly interferes with the exercise of the jurisdiction of a foreign court. It can be said that the protection of the jurisdiction of domestic courts is a game with the interference of foreign judicial sovereignty. Only when the interests protected by the former are greater than those of the latter can British courts issue the injunction without hesitation. Generally, there are the following types of injunction issued by British courts:

Breach of an arbitration agreement or an exclusive court jurisdiction agreement is the most common case in which an injunction is issued by a British court. Arbitration agreement or exclusive court jurisdiction agreement is the agreement reached by the parties on how to settle the dispute. It is considered as a kind of contract. If there is no strong reason to deviate from the agreement, the parties shall initiate proceedings in the agreed institution. If one party fails to comply, the other party may apply to the court or the arbitration tribunal for an injunction. Is The most important case of The Angelic Grace: a case of disputes between owner and charterer, ship owners in The UK arbitration and requires The court issues v. ban charterer is The accident cause any claim to The court in order to better promote The arbitration procedure, The court, but The charterer or in Italy at The same time charterers to determine The scope of The arbitration clause in The use of The court, this is The case v. and counterclaim to arbitration? The English court ruled that all this and counterclaims should be arbitrated. After the ruling came into force, the charterers continued their proceedings in Italian courts, in which case the RIX court issued an injunction. In addition, judge Millett's interpretation became the mainstream view during the trial: "... It used to be thought that jurisdiction could only be exercised with moderation and care... This view has also been widely praised. However, I do not see any reason for courts to be timid in issuing injunctions restricting defendants from suing in foreign courts. The reason is simple -- the defendant has promised not to file such a lawsuit."

Foreign litigation is vexing or oppressive. In Turner v. Grovit, the Turner v. Grovit case in the British proceedings, the judge issued the injunction because he considered the proceedings in Spain to be vexing or oppressive rather than because the parties had violated the provisions of arbitration or exclusive jurisdiction. What is plagued with oppression, was generally think that violates the forbidden confession, delay, or more generally can be called unfair behavior, classification, is the pursuit of illegal interests brought by program, useless foreign law, malicious filed by foreign legal procedures, the excessive jurisdiction of a foreign court, or has very little to do with the case and the case caused oppression or other aspects.

Failure to issue an injunction is irreparable and the applicant may prevail in the UK. The United Nations commission on international trade law (uncitral) granted the arbitral tribunal the right to issue an injunction in the newly revised model law on international commercial arbitration in 2006, provided that irreparable damage exists and the possibility of victory exists. In British jurisprudence, a judge does not generally issue an injunction if he considers that future monetary compensation is sufficient relief.

In order to strengthen mutual trust in economic and legal exchanges among the member states of the European Community and unify the rules governing international civil and commercial jurisdiction of the member states, in 1968, six European countries signed the convention on civil and commercial jurisdiction and enforcement of judgments, to which Britain acceded in 1978. Article 21 of the convention establishes the first-seized court principle - that is, the first-seized court decides who has jurisdiction. Obviously, the unilateral ruling that jurisdiction of international civil and commercial cases can only be exercised by domestic courts embodied in the injunction is inconsistent with the ruling principle of the court of first instance of Brussels convention.

Before Gasser and Turner v. Grovit, injunctions issued by British courts were relatively free. After joining the Brussels convention system, cases issued by British courts must be interpreted in accordance with Gasser and Turner v. Grovit.

Gasser, who has been heard in the European court of justice, has established the principle that the first respondent determines the validity of the jurisdiction clause and the second respondent determines the jurisdiction clause, thereby limiting the right of British courts to issue injunctions based on the exclusivity clause. Turner v. Grovit was considered even more offensive to the Brussels convention. The European court of justice did not allow a party whose case was prohibited by a court of a contracting state from bringing a suit before a court of another contracting state or from proceeding with the case because the Brussels convention was based on mutual legal trust in member states. The effectiveness of the European court of justice is higher than that of the British court, so the principles established in these two cases have the effect of case law on British trials. In the appeal hearing of Assurance Co Through Transport Mutual v New India, for example, the UK court revoked the injunction issued by the first instance and only confirmed that the respondent could only arbitrate in the UK. However, there are also views that the European court of justice's view on the injunction is too mechanical and simple, which needs to be enriched and developed in future cases, and these cases have no influence on cases outside the scope of application of the convention.

Eu countries have their own interests in the construction of the jurisdiction system in the Brussels convention, but Britain, as the European arbitration center, has different interest requirements from other eu countries, so it will become the hotbed for the development of the injunction system. Although it has been questioned by many parties and there are many cases in which other countries refuse to recognize and implement the UK injunction, some scholars believe that the UK courts will not abandon the use of the injunction. The reason for this is that the UK is skeptical of European integration and only wants to maintain the status quo.

In addition, the in-depth development of economic, legal, cultural globalization today, should be promoted among countries seem to be in a more respect for judicial sovereignty of other countries, a commitment to international comity, in view of the positive conflict of jurisdiction solution, such as the issuance of v. ban when considering the principle of reciprocity, try to carry out inconvenient court principle and principle of pending litigation, etc.

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