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

I. INTRODUCTION 

The globalization of commerce and investment has led to a proliferation of cross-border disputes, often resulting in parallel litigation in multiple jurisdictions. Antisuit injunctions—orders restraining parties from pursuing litigation in foreign courts—are a powerful but controversial tool for managing the risks of duplicative litigation, inconsistent judgments, and strategic forum shopping. Yet their use raises fundamental questions about judicial comity, sovereignty, and the proper role of U.S. courts in the international legal order. 

This essay explores United States courts’ treatment of parallel proceedings in light of principles of international comity, the evolution of antisuit injunction doctrine including the doctrinal divergence between the “liberal” and “conservative” Circuits’ approaches to antisuit injunctions that have shaped the doctrine’s contours. Focusing on the recent caselaw, this essay assesses the increasing role international comity plays in antisuit injunctions against sovereign states, especially in the context of international arbitration and investment treaty enforcement. 

II.  ANTISUIT INJUNCTIONS AND INTERNATIONAL COMITY 

An antisuit injunction is an order issued by a court enjoining a party over whom it has personal jurisdiction from prosecuting or continuing a litigation (or arbitration) in a foreign court (or tribunal).2 The injunction operates in personam, not in rem; it does not bind the foreign court directly but rather the parties before the domestic court.3 The principal purposes of antisuit injunctions are to prevent vexatious or duplicative litigation, protect the court’s jurisdiction, and avoid inconsistent judgments.4 However, because such injunctions have the potential to impinge upon the sovereignty of foreign states and implicate the principle of international comity, they are considered an “extraordinary remedy” and are “granted only with care and great restraint.”5