In a short note, Stephen Houseman QC discusses the implication of terms into arbitration agreements under English law and, in particular, whether there is scope for an implied mutual obligation to prevent parties taking steps to circumvent or subvert their express positive obligation to submit relevant disputes to arbitration. This may ultimately involve recognition of a contractual duty not to act unconscionably in relation to arbitration agreements or proceedings or awards, and that in turn may lead to a re-drawing of the traditional distinction between contractual and non-contractual anti-suit injunctions.
The impetus for such discussion is the occurrence of collusive or circumventive foreign litigation which has provided the context for English courts granting anti-suit injunctions in recent years. Stephen has been involved in a number of these cases. See here a summary of Stephen’s experience in this specialist practice area.