Anti-Suit Injunctions in International Arbitration
Anti-suit Injunctions in International Arbitration covers the controversial and emerging topic of anti-suit injunctions issued by courts and arbitral tribunals in both international commercial and investment arbitration. By focusing on the legality and various effects of anti-suit injunctions, it provides for workable solutions for the use of anti-suit injunctions in Continental Europe.
Anti-suit injunctions are essentially provisional measures issued against a party that enjoins the respondent from continuing or filing a suit in another forum by disregarding a valid arbitration agreement made between the parties. Although this work analyzes all aspects of anti-suit injunctions, it also discusses features and problems related to provisional measures in general. It evaluates various aspects of anti-suit injunctions that are not common to the legal systems of many countries in Continental Europe, and analyzes them from the perspective of both Turkish law and comparative law. Virtually all aspects of anti-suit injunctions in international arbitration are addressed, namely:
-- the definition, emergence, wording, interpretation, types, and other issues relevant to anti-suit injunctions;
-- the legal foundations of anti-suit injunctions in the rules of international arbitration;
-- popular cases regarding anti-suit injunctions such as West Tankers, Gazprom etc..;
-- the interrelation of anti-suit injunctions with many other doctrines including lis alibi pendens, objection of arbitration, international comity, forum non conveniens, and exorbitant jurisdiction;
-- recent types of anti-suit injunctions, namely anti-anti-suit injunctions and anti-enforcement injunctions.
It also:
-- considers BREXIT’s influence on the use of anti-suit injunctions;
-- examines whether it is possible to obtain an anti-suit injunction before the arbitral tribunal is constituted;
-- discusses why parties most often obey anti-suit injunctions and considers the motive and reasoning for parties’ voluntary or non-voluntary compliance;
-- studies the main criticisms emanating from Continental European legal systems while providing answers and solutions;
-- explores whether anti-suit injunctions can be accepted as violating the public policy or constitutional principles of Turkey, which the work views as a primary example of the Continental European legal system; and
-- analyzes problematic stipulations of arbitration rules in Civil Law countries in light of the broader goal of reaching the uniform application of anti-suit injunctions in international arbitration and of solving many of its current problems.
_______________________
This is the work of "an emerging and energetic Turkish scholar who brings a productive and much-needed transnational and comparative perspective to the scholarship in international arbitration."
—John J. Barceló III
William N. Cromwell Professor of
International & Comparative Law
Cornell University Law School
PDF of Title Page and TOC
Foreword
Preface
About the Author
CHAPTER 1
INTRODUCTION TO ANTI-SUIT INJUNCTIONS
A. Overview
1. Definition
2. Historical Background
3. Wording
B. Scope
1. The Relationship between Courts and Arbitral Tribunals
2. The Imperium Doctrine
C. Form
D. Characterization
CHAPTER 2
CONDITIONS FOR GRANTING ANTI-SUIT INJUNCTIONS
A. There Should Not Be “Undue or Unnecessary Delay”
B. The Foreign Proceedings Must Not Be Too Far Advanced
C. The Measure Must Be Just and Convenient
D. The Foreign Litigation Must Be Vexatious and Oppressive
E. There Should Not Be a Good Reason Not to Grant Injunction
CHAPTER 3
BURDEN OF PROOF IN ANTI-SUIT INJUNCTION CLAIMS
A. Obligated Party and Procedure
1. Court Proceedings
2. Arbitral Proceedings
a) General
b) Ad Hoc Arbitration
c) Institutional Arbitration
B. Standard of Proof
C. Scope of Proof
CHAPTER 4
IMPORTANCE OF ANTI-SUIT INJUNCTIONS
A. For Parties
B. For Arbitrators
C. For Courts
CHAPTER 5
INTERPRETATION OF ANTI-SUIT INJUNCTIONS
A. Approaches towards Anti-suit Injunctions
1. Conservative Approach
2. Liberal Approach
3. Middle-ground Approach
B. Analysis of the Approaches
CHAPTER 6
RELEVANT LEGAL CONCEPTS
A. International Comity
B. Preliminary Objection of Arbitration
C. Forum Shopping
D. Exorbitant Jurisdiction
E. Forum Non Conveniens
F. Lis Alibi Pendens
CHAPTER 7
TYPES OF ANTI-SUIT INJUNCTIONS
A. Anti-suit Injunctions by Courts
1. Anti-suit Injunctions
a) General
b) West Tankers
c) Prominent Cases and Analysis
2. Anti-arbitration Injunctions
a) General
b) Sample Cases
c) Analysis
B. Anti-suit Injunctions by Arbitrators
1. Arbitral Anti-suit Injunctions
a) General
b) Gazprom Case
c) Prominent Cases
d) Analysis
2. Arbitral Anti-arbitration Injunctions
a) General
b) Prominent Cases
CHAPTER 8
LEGAL FRAMEWORK FOR ARBITRAL ANTI-SUIT INJUNCTIONS
A. Arbitrators’ Power to Issue Provisional Measures in General
B. Arbitrators’ Power to Issue Provisional Measures in Institutional Arbitration
C. Arbitrators’ Power to Issue Provisional Measures in Ad Hoc Arbitration and National Arbitration Legislation
D. Arbitrators’ Power to Issue Provisional Measures in International Arbitration Conventions
CHAPTER 9
OBEYING OR DISOBEYING ANTI-SUIT INJUNCTIONS
A. Compliance
1. General
2. Voluntary Compliance
B. Non-compliance
1. Arbitral Sanctions for Non-compliance
2. Court Sanctions for Non-compliance
CHAPTER 10
EMERGING ISSUES REGARDING ANTI-SUIT INJUNCTIONS
A. Pre-arbitral Anti-suit Injunction
B. Anti-enforcement Injunction
C. Anti-anti-suit Injunction
D. BREXIT’s Effects on Anti-suit Injunctions
CHAPTER 11
ANTI-SUIT INJUNCTIONS IN CIVIL LAW
A. General Approach
B. Criticisms against Anti-suit Injunction in Civil Law
1. Violation of Constitutional Rights
2. Fallacy of Order against a National Court
3. Violation of Public Order
4. Enforcement of Anti-suit Injunctions
CHAPTER 12
ANTI-SUIT INJUNCTIONS IN CONTINENTAL EUROPE: THE EXAMPLE OF TURKEY
CHAPTER 13
SOLUTIONS AND FINAL REMARKS
Appendix A. Turkish International Arbitration Law, Law no. 4686, 2001
Appendix B. UNCITRAL Model Law, Section 4. Article 17 H and 17 I
Appendix C. New York Convention
Appendix D. Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards
Appendix E. European Convention on International Commercial Arbitration (1961)
Appendix F. Istanbul Arbitration Centre Arbitration Rules
TABLE OF ABBREVIATIONS
BIBLIOGRAPHY
INDEX
Ilyas Golcuklu is Assoc. Prof. in Private International Law. Ilyas has a Bachelor of Law degree from Koç University Law Faculty, Istanbul and two LLM degrees; one from the University of Georgia, USA and the other from Koç University, Istanbul. He was also a research assistant in Banking & Finance Law at the University of Georgia during his LL.M studies. Ilyas Golcuklu conducted his PhD research under the supervision of Prof. John J. Barceló III and participated at the Cornell University Law School as Visiting Scholar in 2017. He completed his PhD in International Arbitration at the Université Galatasaray (Istanbul) in May 2018 with thesis titled Anti-suit Injunctions in International Arbitration which is published by Juris headquartered in Huntington-New York/ USA.
Assoc. Prof. Golcuklu has been acting as party-appointed arbitrator, sole arbitrator in both local and international ad hoc/institutional arbitral proceedings. He is a Partner and the Head of Private International Law & Arbitration Department at AES Law Office in Istanbul. He has also been an expert mediator in complex domestic and international commercial disputes.
Assoc. Prof. Golcuklu has been Associate Professor in Private International Law since January 2021. He has been teaching various courses in Private International Law at Altinbas University where he currently works and at other universities as Visiting Professor as well. He teaches wide variety of courses including International Commercial Arbitration, Aviation Law, International Transport Law, International Investment Arbitration, International Commercial Contracts, Insurance Law, ADR and Private International Law. He is also a licensed lawyer at Istanbul Bar Association as of 2013 and a licensed expert mediator in commercial disputes under the Ministry of Justice. He has been selected as Expert in Promoting Alternative Dispute Resolution (ADR) in Turkey (a prestigious project jointly run by European Council and European Union for 3-year period – until 10.19.2025).
Assoc. Prof. Golcuklu’s teaching and research interests reside in the areas of arbitration, private international law, foreign investments law, citizenship law, international transport law, aviation law, international commercial contracts and insurance law. Ilyas has published considerable number of books including Anti-suit Injunctions in International Arbitration (2020, Juris Publishing), Settlement of Bankruptcy Disputes in Private International Law(2020), Aviation Law (2021, 2nd Edition), Prep. for Mediation Exam(2022, 5th Edition), Recent Developments in Carriage by Air (Ed., 2020), Air Carrier’s Liability under the Montreal Convention (2015). Ilyas is also a Co-Author for Insurance Law in Turkey, a book which is published by Wolters Kluwer under the series of International Encyclopedia of Laws (9 Chapters, 2019- 2nd edition)
Assoc. Prof. Golcuklu has also published many articles in above-mentioned areas such as “Practice of Anti-suit Injunctions in Continental European Law Considering the Recent Developments” ( Chapter in Tahkim Anlaşması Tahkim Okulu Paneller Serisi Cilt-2, Ed. Mustafa ERKAN / Candan YASAN TEPETAŞ, 2021), “Stipulation of Arbitration Clause in Standardized Terms of Contract” (Chapter in Tahkim ve Uygulanacak Hukuk, Ed. Ziya AKINCI / Berk DEMİRKOL, 2021), “Recognition And Enforcement of International Surrogacy Decisions”(GSÜHFD, 2021), “Obtaining Turkish Citizenship by Investment: Problems and Solutions” (Public and Private International Law Bulletin, 40(1), 125-141), “The Fifth Jurisdiction Rule and Practice under the Montreal Convention” (MARUHAD, 26(1), 317-338), “Umbrella Clauses in the ICSID Arbitration” (Public and Private International Law Bulletin, Volume: 37, Issue: 2, 352–375), “Analysis of Some Problems Arising from ICSID’s Jurisdiction” (Public and Private International Law Bulletin 38(2): 285–309) and “Sukuk: Leasing Certificates under the Communiqué Numbered III-61.1 of the Capital Markets Board of Turkey” (BATIDER XXXII- 4, pp. 203-237). Ilyas has also presented many colloquiums in abovementioned areas.
----This is the work of "an emerging and energetic Turkish scholar who brings a productive and much-needed transnational and comparative perspective to the scholarship in international arbitration."
—John J. Barceló III
William N. Cromwell Professor of International & Comparative Law
Cornell University Law School
Ilyas Golcuklu is Assoc. Prof. in Private International Law. Ilyas has a Bachelor of Law degree from Koç University Law Faculty, Istanbul and two LLM degrees; one from the University of Georgia, USA and the other from Koç University, Istanbul. He was also a research assistant in Banking & Finance Law at the University of Georgia during his LL.M studies. Ilyas Golcuklu conducted his PhD research under the supervision of Prof. John J. Barceló III and participated at the Cornell University Law School as Visiting Scholar in 2017. He completed his PhD in International Arbitration at the Université Galatasaray (Istanbul) in May 2018 with thesis titled Anti-suit Injunctions in International Arbitration which is published by Juris headquartered in Huntington-New York/ USA.
Assoc. Prof. Golcuklu has been acting as party-appointed arbitrator, sole arbitrator in both local and international ad hoc/institutional arbitral proceedings. He is a Partner and the Head of Private International Law & Arbitration Department at AES Law Office in Istanbul. He has also been an expert mediator in complex domestic and international commercial disputes.
Assoc. Prof. Golcuklu has been Associate Professor in Private International Law since January 2021. He has been teaching various courses in Private International Law at Altinbas University where he currently works and at other universities as Visiting Professor as well. He teaches wide variety of courses including International Commercial Arbitration, Aviation Law, International Transport Law, International Investment Arbitration, International Commercial Contracts, Insurance Law, ADR and Private International Law. He is also a licensed lawyer at Istanbul Bar Association as of 2013 and a licensed expert mediator in commercial disputes under the Ministry of Justice. He has been selected as Expert in Promoting Alternative Dispute Resolution (ADR) in Turkey (a prestigious project jointly run by European Council and European Union for 3-year period – until 10.19.2025).
Assoc. Prof. Golcuklu’s teaching and research interests reside in the areas of arbitration, private international law, foreign investments law, citizenship law, international transport law, aviation law, international commercial contracts and insurance law. Ilyas has published considerable number of books including Anti-suit Injunctions in International Arbitration (2020, Juris Publishing), Settlement of Bankruptcy Disputes in Private International Law(2020), Aviation Law (2021, 2nd Edition), Prep. for Mediation Exam(2022, 5th Edition), Recent Developments in Carriage by Air (Ed., 2020), Air Carrier’s Liability under the Montreal Convention (2015). Ilyas is also a Co-Author for Insurance Law in Turkey, a book which is published by Wolters Kluwer under the series of International Encyclopedia of Laws (9 Chapters, 2019- 2nd edition)
Assoc. Prof. Golcuklu has also published many articles in above-mentioned areas such as “Practice of Anti-suit Injunctions in Continental European Law Considering the Recent Developments” ( Chapter in Tahkim Anlaşması Tahkim Okulu Paneller Serisi Cilt-2, Ed. Mustafa ERKAN / Candan YASAN TEPETAŞ, 2021), “Stipulation of Arbitration Clause in Standardized Terms of Contract” (Chapter in Tahkim ve Uygulanacak Hukuk, Ed. Ziya AKINCI / Berk DEMİRKOL, 2021), “Recognition And Enforcement of International Surrogacy Decisions”(GSÜHFD, 2021), “Obtaining Turkish Citizenship by Investment: Problems and Solutions” (Public and Private International Law Bulletin, 40(1), 125-141), “The Fifth Jurisdiction Rule and Practice under the Montreal Convention” (MARUHAD, 26(1), 317-338), “Umbrella Clauses in the ICSID Arbitration” (Public and Private International Law Bulletin, Volume: 37, Issue: 2, 352–375), “Analysis of Some Problems Arising from ICSID’s Jurisdiction” (Public and Private International Law Bulletin 38(2): 285–309) and “Sukuk: Leasing Certificates under the Communiqué Numbered III-61.1 of the Capital Markets Board of Turkey” (BATIDER XXXII- 4, pp. 203-237). Ilyas has also presented many colloquiums in abovementioned areas.
----This is the work of "an emerging and energetic Turkish scholar who brings a productive and much-needed transnational and comparative perspective to the scholarship in international arbitration."
—John J. Barceló III
William N. Cromwell Professor of International & Comparative Law
Cornell University Law School
PDF of Title Page and TOC
Foreword
Preface
About the Author
CHAPTER 1
INTRODUCTION TO ANTI-SUIT INJUNCTIONS
A. Overview
1. Definition
2. Historical Background
3. Wording
B. Scope
1. The Relationship between Courts and Arbitral Tribunals
2. The Imperium Doctrine
C. Form
D. Characterization
CHAPTER 2
CONDITIONS FOR GRANTING ANTI-SUIT INJUNCTIONS
A. There Should Not Be “Undue or Unnecessary Delay”
B. The Foreign Proceedings Must Not Be Too Far Advanced
C. The Measure Must Be Just and Convenient
D. The Foreign Litigation Must Be Vexatious and Oppressive
E. There Should Not Be a Good Reason Not to Grant Injunction
CHAPTER 3
BURDEN OF PROOF IN ANTI-SUIT INJUNCTION CLAIMS
A. Obligated Party and Procedure
1. Court Proceedings
2. Arbitral Proceedings
a) General
b) Ad Hoc Arbitration
c) Institutional Arbitration
B. Standard of Proof
C. Scope of Proof
CHAPTER 4
IMPORTANCE OF ANTI-SUIT INJUNCTIONS
A. For Parties
B. For Arbitrators
C. For Courts
CHAPTER 5
INTERPRETATION OF ANTI-SUIT INJUNCTIONS
A. Approaches towards Anti-suit Injunctions
1. Conservative Approach
2. Liberal Approach
3. Middle-ground Approach
B. Analysis of the Approaches
CHAPTER 6
RELEVANT LEGAL CONCEPTS
A. International Comity
B. Preliminary Objection of Arbitration
C. Forum Shopping
D. Exorbitant Jurisdiction
E. Forum Non Conveniens
F. Lis Alibi Pendens
CHAPTER 7
TYPES OF ANTI-SUIT INJUNCTIONS
A. Anti-suit Injunctions by Courts
1. Anti-suit Injunctions
a) General
b) West Tankers
c) Prominent Cases and Analysis
2. Anti-arbitration Injunctions
a) General
b) Sample Cases
c) Analysis
B. Anti-suit Injunctions by Arbitrators
1. Arbitral Anti-suit Injunctions
a) General
b) Gazprom Case
c) Prominent Cases
d) Analysis
2. Arbitral Anti-arbitration Injunctions
a) General
b) Prominent Cases
CHAPTER 8
LEGAL FRAMEWORK FOR ARBITRAL ANTI-SUIT INJUNCTIONS
A. Arbitrators’ Power to Issue Provisional Measures in General
B. Arbitrators’ Power to Issue Provisional Measures in Institutional Arbitration
C. Arbitrators’ Power to Issue Provisional Measures in Ad Hoc Arbitration and National Arbitration Legislation
D. Arbitrators’ Power to Issue Provisional Measures in International Arbitration Conventions
CHAPTER 9
OBEYING OR DISOBEYING ANTI-SUIT INJUNCTIONS
A. Compliance
1. General
2. Voluntary Compliance
B. Non-compliance
1. Arbitral Sanctions for Non-compliance
2. Court Sanctions for Non-compliance
CHAPTER 10
EMERGING ISSUES REGARDING ANTI-SUIT INJUNCTIONS
A. Pre-arbitral Anti-suit Injunction
B. Anti-enforcement Injunction
C. Anti-anti-suit Injunction
D. BREXIT’s Effects on Anti-suit Injunctions
CHAPTER 11
ANTI-SUIT INJUNCTIONS IN CIVIL LAW
A. General Approach
B. Criticisms against Anti-suit Injunction in Civil Law
1. Violation of Constitutional Rights
2. Fallacy of Order against a National Court
3. Violation of Public Order
4. Enforcement of Anti-suit Injunctions
CHAPTER 12
ANTI-SUIT INJUNCTIONS IN CONTINENTAL EUROPE: THE EXAMPLE OF TURKEY
CHAPTER 13
SOLUTIONS AND FINAL REMARKS
Appendix A. Turkish International Arbitration Law, Law no. 4686, 2001
Appendix B. UNCITRAL Model Law, Section 4. Article 17 H and 17 I
Appendix C. New York Convention
Appendix D. Hypothetical Draft Convention on the International Enforcement of Arbitration Agreements and Awards
Appendix E. European Convention on International Commercial Arbitration (1961)
Appendix F. Istanbul Arbitration Centre Arbitration Rules
TABLE OF ABBREVIATIONS
BIBLIOGRAPHY
INDEX