## Facts

- A 1997 concession agreement for operation of a hydroelectric plant in Kazakhstan was governed by Kazakh law and included an ICC arbitration clause with London as the seat.
- The parties’ relationship deteriorated, and the owner (JSC) pursued litigation in Kazakhstan raising disputes said to fall within the arbitration clause.
- Kazakh courts had previously treated the arbitration clause as invalid under Kazakh law.
- The operator (AESUK) brought proceedings in the English Commercial Court seeking (i) a declaration that the arbitration clause was valid and binding and (ii) an anti-suit injunction restraining JSC from continuing or commencing Kazakh court proceedings in breach of the clause.
- AESUK had not commenced, and did not intend to commence, any arbitration; it sought to enforce the agreement’s negative promise not to litigate elsewhere.
- The High Court granted final declaratory relief and a final anti-suit injunction; the Court of Appeal affirmed.

## Issues

1. Whether an English court may grant a declaration and a final anti-suit injunction to enforce a London-seated arbitration agreement when no arbitration is on foot or contemplated, and the foreign proceedings are outside the Brussels/Lugano regime.
2. Whether the Arbitration Act 1996 constitutes an exhaustive scheme that displaces or limits the court’s general injunctive power under Senior Courts Act 1981 § 37 in these circumstances.
3. Whether relief is confined to the Arbitration Act 1996 § 44 (court powers “for the purposes of and in relation to arbitral proceedings”), requiring existing or proposed arbitral proceedings.

## Decision

- The Supreme Court dismissed JSC’s appeal.
- The Court held English courts have power to grant declaratory relief and a final anti-suit injunction to restrain foreign proceedings brought in breach of a London-seated arbitration clause, even if no arbitration is pending or intended.
- The source of that power is the court’s general and inherent jurisdiction, including Senior Courts Act 1981 § 37; it is not excluded by the Arbitration Act 1996.
- The choice of London as the seat made the English court the appropriate supervisory (“curial”) court to protect the parties’ agreement, subject to discretionary considerations.
- Because the foreign proceedings were in Kazakhstan (outside Brussels/Lugano constraints), there was no bar to anti-suit relief on that ground.

## Legal Principles

- An arbitration agreement has both a positive promise to arbitrate covered disputes and a negative promise not to litigate those disputes in other forums; the negative promise may be specifically enforced.
- Senior Courts Act 1981 § 37 authorizes injunctions where “just and convenient,” and that general jurisdiction remains available to restrain foreign litigation brought in breach of an arbitration agreement.
- Arbitration Act 1996 § 1(c) (“no court intervention except as provided”) is confined to “matters governed by this Part” and does not make the Act an exhaustive code for all court powers affecting arbitration agreements.
- Arbitration Act 1996 § 44 is supportive of arbitral proceedings and does not restrict the court’s separate power to protect the arbitration agreement itself, including by final anti-suit relief.
- When England is the chosen seat, English courts have a legitimate supervisory interest in enforcing the arbitration bargain against foreign court proceedings, subject to discretion and comity.

## Conclusion

The Supreme Court confirmed that English courts may, under their general injunctive and declaratory jurisdiction, restrain non-EU foreign court proceedings brought in breach of a London-seated arbitration agreement even where neither party has commenced or intends to commence arbitration.


Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP, [2013] UKSC 35 (UK 2013)