As far as the compatibility of anti-arbitration injunctions with the New York Convention is concerned, the relevant provision is Article II(3), which provides that the court should refer the matter to arbitration unless the arbitration agreement is “null and void, inoperative or incapable of being performed.”  This provision mandates a court to enjoin its proceedings in case of validity of the arbitration agreement and, in the converse case, allows the court to adjudicate the matter. However, this provision is silent on the matter of issuance of an anti-arbitration injunction by a court which arrives at the conclusion that the arbitration agreement is “null and void, inoperative or incapable of being performed.” 

 

Courts have been issuing anti-arbitration injunctions without laying down a test to be applied when deciding such applications. In Pakistan it seems that either the anti-arbitration injunction application is decided by the court on a case-by-case basis or by applying the tests employed by the English courts or the Pakistani civil courts in civil litigation.

 

Anti-arbitration injunctions are one of the controversial subjects of arbitration. This contentious nature is owing to the test which is applied on the eve of their issuance without taking the culture and nature of arbitration into consideration. There is a need for a test for anti-arbitration injunctions to be formulated by giving particular regard to the internationally accepted principles of arbitration.