Types of Anti-suit Injunctions - Chapter 7 - Anti-suit Injunctions in International Arbitration
Anti-suit injunctions can be analyzed under two main categories based on the issuing forums: (i) Anti-suit injunctions by courts, (ii) Anti-suit injunctions by arbitrators (arbitral anti-suit injunctions). Each category can be divided into two sub-categories because each anti-suit injunction by any forum aims at either enjoining court proceedings (anti-suit injunctions) or arbitral proceedings (anti-arbitration injunctions).
While analyzing each of the four types below, contrary to the rest of this book, the term ‘anti-suit injunction ‘does not refer to all types but only refers to those against the defendant to enjoin his foreign court proceedings. This section distinguishes anti-suit injunctions from those aimed at enjoining arbitral proceedings, namely from anti-arbitration injunctions. Unless stated otherwise therefore, the terms anti-suit injunction and anti-arbitration injunction refer to two distinct sub-categories which will be analyzed in detail below. In order to distinguish the two sub-categories of courts from that of arbitrators, arbitral anti-suit injunctions and arbitral anti-arbitration injunctions terms shall be used for the latter category.
A. Anti-suit Injunctions by Courts
1. Anti-suit Injunctions
It is noteworthy that anti-suit injunctions issued by a national court enjoining the defendant from starting or continuing a foreign court proceeding without involving arbitration at all do not fall within the scope of this study. Since the book analyses anti-suit injunctions in the context of international arbitration, pure anti-suit injunctions without involving arbitral issues do not interest this study. In fact, such anti-suit injunctions are wide and can be the study of a separate book. Although, the book will refrain from analyzing in detail these pure measures not involving arbitration, it will sometimes refer to such measures since they also have some bearing that is relevant to arbitration. The main focus of this section will be on anti-suit injunctions issued by a national court enjoining the defendant from starting or continuing a foreign court proceeding, which would be in breach of a valid arbitration agreement or clause.
The parties may decide on the jurisdiction of a national court or of an arbitral tribunal by concluding an exclusive jurisdiction agreement or stipulating such clause in their agreement. As emphasized above, the former is generally a part of private international law and irrelevant to this study whereas the latter falls within the scope of this book since it aims to enforce an agreement to arbitrate. Article II/3 of the NYC (1958) requiring courts of contracting states to ‘refer the parties to arbitration ‘also has significance in that regard. The national court does not protect its own jurisdiction by issuing an anti-suit injunction addressed to the defendant but protects the arbitral forum’s exclusive jurisdiction derived from the parties’ mutual will. An anti-suit injunction issued by court in a non-arbitral case may still be very significant because the acceptance of such an anti-suit injunction shows that the accepting jurisdiction does not take a hostile approach towards anti-suit injunctions in general.
This book has already mentioned various anti-suit injunctions above. Below, the book will examine some prominent cases where anti-suit injunctions were issued by national courts. It is important to note that exploring all anti-suit injunctions by each country’s courts would go beyond the scope of this book. Therefore, the book first reviews the measures from the perspective of EU Law and then continues with a review of some prominent cases in both Common Law and Civil Law systems.