Originally from Anti-suit Injunctions in International Arbitration

A.   Overview

1.  Definition

In international arbitration, an anti-suit injunction issued by an arbitral tribunal or court basically is to persuade a party breaching the arbitration clause to bring all disputes before the arbitral tribunal according to the arbitration agreement. The author is aware that although anti-suit injunctions are issued only against parties, one may argue that it is the foreign forum or proceedings that are eventually forbidden indirectly. Thus, a provisional measure that is directed against the parties, in fact indirectly affects the proceedings of national courts of another sovereign state. In the author’s opinion, such indirect influence does not change the fact that anti-suit injunction is principally addressed to a respondent that is violating a forum selection agreement. Despite this fact, one should bear in mind that such indirect influence may cause various problems in practice between arbitral processes and parallel proceedings.

The author uses anti-suit injunction as a general and inclusive term in this book unless stated otherwise. As discussed in more details below, anti-suit injunctions are not only used by courts but also by arbitrators as well. Additionally, such injunctions may be addressed to a respondent to enjoin other arbitration proceedings as well. Provisional measures to enjoin parties from continuing or starting arbitral proceedings are called anti-arbitration injunctions. Whereas provisional measures issued against parties to enjoin them from continuing or starting court proceedings are called anti-suit injunctions. These are not the only versions because there are also similar measures designed to prevent parties from enforcing a judgment, and these are called anti-enforcement injunctions. If an arbitral tribunal orders a party to cease and desist from continuing or starting court proceedings, such types of anti-suit injunctions are called arbitral anti-suit injunctions. This book uses anti-suit injunction as a general term that includes all these types of measures. This is appropriate within the objectives of this book because it is possible to argue that arbitration actions or enforcement proceedings are essentially suits. When we understand the term suit as any proceeding but not just a “court proceeding,” using the broad category of anti-suit injunctions seems more adequate for any interim measures that are issued against defendants to enjoin them from continuing or starting any proceedings in any forum. When the book specifically analyzes other types, it will use the terms anti-arbitration injunctions, arbitral anti-suit injunctions or anti-enforcement injunctions. Other than that, readers should understand that the term anti-suit injunction is used in its general sense rather than describing any specific type.