It is said that international arbitration exists in its own rarefied domain, independent and autonomous of any system of national law. Even subscribers to this view will accept that arbitration will usually interact with systems of national law at some point, but the argument is often made that national courts fail to respect the boundary between issues of national jurisdiction and the autonomous nature of international arbitration. This conflict protrudes greatly in the context of “threshold” or “gateway” disputes. With the increase in international arbitration, inevitably there has come an increase in disputes relating to whether a party consented to arbitration, whether the right to arbitrate has been waived, whether an agreement is applicable, whether a tribunal is properly constituted and so on, with variations on these themes. As a result, parties are increasingly looking to courts to enjoin arbitration proceedings with what has become known as an anti-arbitration injunction.

 

Anti-arbitration injunctions operate to oust the jurisdiction of an arbitral tribunal by enjoining a party or an arbitrator from participating in the arbitration. While closely related to anti-suit injunctions, they are distinguished on the basis that they do not interfere with foreign sovereignty but rather with the rarefied domain in which international arbitration is said to exist. Anti arbitration injunctions have been described as one of the gravest problems facing international commercial arbitration and the alleged ills of the anti-arbitration injunction are regularly expounded; an exercise of jurisdiction that violates customary public international law, the blocking access to an agreed forum, a confiscation of contractual rights and violation of a state’s right to review at enforcement stage. On the other hand, antiarbitration injunctions are aimed at serving a legitimate purpose; to prevent abuse of process, to avoid multiplicity of proceedings and to prohibit relitigation of disputes. Despite differing views on the desirability of antiarbitration injunctions, they are increasingly used and have been accepted as a tool of the trade for international litigators, albeit begrudgingly. Regardless of whether anti-arbitration injunctions are desirable, one thing is for certain, they are becoming increasingly prevalent.