Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

1. INTRODUCTION 

Some may regard the concept of an anti-arbitration injunction (“AAI”) as a modern phenomenon. It is far from it. Though the earliest reported example in the English law reports I was able to find takes us back more than 200 years, such injunctive power was probably in place following the Williamite Arbitration Act of 1697 (or 1698—it is unclear), pioneered by philosopher and slave owner, John Locke, who was then a member of the British Board of Trade, and for whose benefit inter alios the Act was brought into being. Locke hated lawyers, you see. Little could he foresee how things would turn out… 

In this essay, an attempt is made to trace the roots of the injunctive power, and follow through the main line of cases, ending (so far) with the excellent first instance 2024 decision of Mr. Justice Foxton (as he currently is) in Sodzawiczny v. Smith.2 

I will conclude with a summary of what I regard as the main principles to be applied in any such injunction, referable to the precise nature of the AAI sought and the grounds for seeking an AAI. (Warning: there is a sting in this tale.)   

2. The early cases: 1815–1895 

The earliest case the author has been able to track down of an English court issuing an injunction to restrain arbitration proceedings is more than two centuries old. In March 1815, the day after the Congress of Vienna had declared Napoleon I to be an international outlaw (and three months before his defeat at the Battle of Waterloo), the then Lord Chancellor (Lord Eldon) pronounced himself entitled to restrain an arbitration from continuing on the grounds that the subject matter had become futile: Mylne v. Dickinson.3