Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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INTRODUCTION

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: [1] the prevention of highly inconvenient or vexatious litigation, [2] the vindication of a prior and independent obligation not to sue, and [3] preservation of the enjoining court’s own jurisdiction or other local policy-based need to forestall judicial proceedings.”