Court Actions in Defence Against Anti-Suit Injunctions - Anti-Suit Injunctions in International Arbitration
Michael E. Schneider, Partner, Lalive & Partners, Geneva. He is one of the Vice-Chairs of the ICC Arbitration Commission, the Leader of its Forum on Arbitration and New Fields and was a member of the ICC Working Parties on the revision of the Arbitration Rules, on Construction Arbitration and on the Pre-Arbitral Referee Procedure. He is a member of the Executive Committee of the Swiss Arbitration Association (ASA).
The subject that I have been invited to comment upon is defences against anti-suit injunctions, in particular action by courts with the objective of preventing or rendering ineffective anti-suit injunction issued in other countries. Such defences include orders enjoining the party having obtained the anti-suit injunction from pursuing the injunction or ordering it to withdraw the injunction.
Anti-suit injunctions originated in the common law world1 but have recently found backers in other jurisdictions, as some of the cases discussed is this volume demonstrate. They are issued when proceedings on the merits are brought (or are likely to be brought) before a national court or an arbitral tribunal (to which I shall refer as the principal action) and the court of another State (the enjoining court) seeks to prevent the principal action from proceeding before the court or tribunal where it was first brought.
The injunction is usually not directed against the court of the principal action but against the party before it. Nevertheless, it expresses the opinion of the enjoining court that it has the right not only to decide on its own jurisdiction but also on the jurisdiction of another court or tribunal. The enjoining court appears to believe that it knows better or has a superior right (for instance on the basis of a choice of forum clause) and that the court of the principal action cannot be trusted or does not have the legal means to reach the correct conclusion (i.e., decline jurisdiction in favor of the chosen forum).2