The Use of Anti-Anti-Suit Injunctions in International Litigation - Chapter 33 - Reflections on International Arbitration
Throughout his august career, Professor George Bermann has dedicated significant attention to questions related to provisional relief and parallel proceedings in international litigation and arbitration. Indeed, in a seminal article some thirty years ago, George identified that foreign anti-suit injunctions (sometimes referred to as counter-suit injunctions), which are orders prohibiting a party from pursuing proceedings before a foreign tribunal, spark significant controversy. The controversy is obvious: even though the injunctions are directed at preventing persons within the jurisdiction of the issuing court from instituting proceedings in a foreign jurisdiction, such orders have the potential to strike at the heart of a foreign court’s jurisdiction to hear a case. As a result, this potentially places courts in conflict as opposed to comity.
In his characteristically nuanced and thoughtful way, George analyzed anti-suit injunctions in hopes of ameliorating the mischief resulting from this potential for conflict. He explored U.S. caselaw, including the interstate and constitutional background of the anti-suit injunction, and comparative materials to understand the various categories to which the anti-suit injunction was put to use in international cases. As he explained, “courts have directed anti-suit injunctions at proceedings in other jurisdictions in order to achieve three broadly stated objectives:  the prevention of highly inconvenient or vexatious litigation,  the vindication of a prior and independent obligation not to sue, and  preservation of the enjoining court’s own jurisdiction or other local policy-based need to forestall judicial proceedings.”