Arbitration analysis: This decision of the Commercial Court illustrates the English courts’ readiness to deploy contempt of court as a coercive and punitive sanction to enforce anti-suit injunctions. The court held that a corporate party and its directing individual were in contempt for deliberately continuing foreign proceedings in breach of a final anti-suit injunction granted in support of a London-seated arbitration. The judgment demonstrates that non-compliance with court orders enforcing arbitration agreements and awards may expose both companies and individuals to serious sanctions, including the realistic prospect of imprisonment. For arbitration practitioners, the case reinforces the court’s robust pro-arbitration stance and its willingness to protect the integrity of the arbitral process through the full range of supervisory powers. It also provides important guidance on attributing contempt to corporate entities through their ‘directing mind and will’, and on evidential and procedural issues where defendants seek to evade compliance by non-attendance or informal changes in control. Written by Professor Brandon Malone, arbitrator at Arbitra International.

This Practice Note considers the different forms of order that an anti-suit injunction might take. It considers interim and final injunctions, prohibitive and mandatory injunctions as well as injunctions used in single forum cases and those used to obtain partial restraint. Types of anti-suit injunction Anti-suit injunctions: • may be interim—applies for a specific period of time • final—will be applied indefinitely Anti-suit injunctions are generally granted after the proceedings to be injuncted have been commenced. However, in rare cases qua timet relief may be granted. When granted there are either in • prohibitive form—an anti-suit injunction is usually in a prohibitive form. In essence, the court orders a party not to continue with/or commence proceedings in another jurisdiction • in mandatory form—these are exceptional and can be narrow eg they require a stay of the foreign proceedings or much broader so that they require a party to discontinue the foreign proceedings Anti-suit injunctions may be used in: • in single forum cases • to obtain partial restraint Quia timet relief—before the proceedings are commenced Anti-suit

This Practice Note provides guidance on making an application for an anti-suit injunction, including the test that the court will apply, together with issues that should be considered both before and when making the application. For guidance on what an anti-suit inunction is and when they are available, see Practice Note: Anti-suit injunctions—principles. An application for an anti-suit injunction engages procedural rules which are common to all applications for an interim injunction. For general guidance on making an application for an interim injunction, see Practice Notes: • Interim injunctions—on notice applications • Interim injunctions—without notice applications The following sections highlight particular aspects of the application procedure which are specific to an application for an anti-suit injunction. What follows should be read as a supplement to, rather than a substitute for, the general guidance referred to above. References to the courts of England and Wales are referenced as the English courts. Practical consideration: when seeking an anti-suit or anti-anti-suit injunction, the courts will scrutinise the application and make sure that it is justified

This Practice Note considers anti-suit injunctions which are a form of injunctive relief used to restrain a party from either commencing or continuing court proceedings. It explains what an anti-suit injunction is and the power of the courts to grant such an injunction. It then explores the basis on which an anti-suit injunction may be refused or granted. It considers the effect of a breach of an anti-suit injunction as well as the impact of foreign anti-suit injunctions on proceedings in the courts of England and Wales. For guidance on: • making an application for an anti-suit injunction, see Practice Note: Anti-suit injunctions—making an application • anti-suit injunctions in cases involving an exclusive jurisdiction clause, see Practice Note: Exclusive jurisdiction agreements and anti-suit injunctions • anti-suit injunctions and the EU, see Practice Note: Anti-suit injunctions and EU court proceedings—pre and post Brexit • anti-suit injunctions in support of arbitration, see Practice Note: Anti-suit injunctions in support of arbitration (England and Wales) Different considerations apply when dealing with the following: • an anti-enforcement injunction to restrain

Arbitration analysis: The Commercial Court dismissed the defendants’ jurisdiction challenge and granted final anti-suit relief enforcing a London arbitration agreement in a Bermuda-issued excess property policy. Louisiana statutory arguments were irrelevant because the arbitration agreement was expressly governed by English law. The claimant also recovered US$709,052.88 damages for US legal costs, an indemnity for future US costs, and indemnity costs of the English action

1 Anti-tax evasion facilitation 1.1 For the purposes of this clause 1: 1.1.1 the expressions ‘Associated With’, ‘Prevention Procedures’, ‘UK Tax Evasion Offence’ and ‘Foreign Tax Evasion Offence’ shall be construed in accordance with Part 3 of the Criminal Finances Act 2017 (CFA 2017) and guidance published under it; 1.1.2 Corporate Failure to Prevent Tax Evasion Facilitation Offence means an offence under section 45 of CFA 2017 and/or section 46 of CFA 2017[ and any other applicable United Kingdom laws, legislation, statutory instruments, and regulations in relation to preventing the facilitation of tax evasion] [ and any similar or equivalent laws in any other relevant jurisdiction [including [specify]] ]; 1.1.3 Policies means the Customer’s anti-tax evasion facilitation policies as set out in Schedule [insert] as updated by the Customer and notified to the Supplier from time to time; 1.1.4 Supplier Associated Person means all or any of the following: (a) the Supplier’s officers, employees, agents, subcontractors, subsidiaries, and persons Associated With the Supplier (Supplier’s Associates); and (b) persons Associated With any of the Supplier’s Associates; in each case, involved in performing services for or on behalf of the Supplier, the Services, and this Agreement.

Local Government analysis: This case involved a successful statutory challenge to an anti-terrorism traffic order (ATTRO) made under section 22C of the Road Traffic Regulation Act 1984 (RTRA 1984). In prohibiting vehicles from entering a restricted area around the Royal Albert Hall (RAH) to protect the public against vehicle-borne terrorist attacks, the scheme was found to operate in a manner which disproportionately interfered with the Claimant’s Article 8 rights by restricting vehicular access to the highway immediately adjacent to his family home from 12 noon onwards daily. The decision emphasises the need for traffic authorities to properly consider whether less intrusive measures could have been used, together with the severity of the consequences on an individual’s Article 8 rights, in determining whether a fair balance has been struck between an individual’s human rights and the public interest, even where anti-terrorism measures are involved. It further indicates the importance of an authority undertaking a Convention-compliant proportionality exercise to consider matters from the perspective of the claimant’s human rights. Written by Ruth Stockley, barrister at Kings Chambers, Manchester.

A patent is anticipated where it lacks novelty because of a particular item of prior art.

Anticipatory breach is where the seller has repudiated the contract prior to the time fixed for delivery of the goods, the buyer may then accept the repudiation and the damages is the difference between the contract price and the value of the goods at the time fixed for delivery.

Property analysis: A recent case dealt with the categorisation, for VAT purposes, of supplies by an antique centre to its stallholders.

EU competition rules prohibiting agreements and concerted business practices which restrict competition, as well as the abuse of dominance.

Tax analysis: The Upper Tribunal (UT) confirmed the First-tier Tax Tribunal’s (FTT) decision that any preferential right to assets of a company is sufficient to prevent the shares from being qualifying shares for the purposes of enterprise investment scheme (EIS). No principles of interpretation (de minimis or purposive construction) can alter the effect of the clear words of the statute.