Judge Schwebel has very eloquently painted the background to our topic from one standpoint in particular, describing the genesis of these types of proceedings. These are injunctions, anti-suit injunctions, where the words “anti-suit” often mean anti-arbitration injunctions, because “suit” is used to include the arbitration procedure. These have existed for quite some time. As Judge Schwebel has pointed out, they can be bothersome for the parties, for the lawyers and for the arbitrators.
I have survived one such proceeding in the past year and it is not an easy matter, particularly if you have a local national, in our case a prominent Indian lawyer, involved. It is one thing, if Judge Schwebel and I, say, ignore such injunction and go ahead, with all of us sitting in London. But it is quite another if you have an Indian co-arbitrator, who is being enjoined in his own country. In our case, it took us and the Parties a long time to resolve the issue and it was clearly an interruption to the procedure.
I think it is fair to say that anyone interested in arbitration is—in the abstract—not in favor of those injunctions, for all of the reasons that Judge Schwebel has set out.
What has happened more recently, though, and what seems to be an increasing trend, is that a second stage of anti-suit injunctions is triggered where the “suit” is not the arbitration but the injunctive procedure which somebody else has already brought.