Julian D.M. Lew, Partner, Herbert Smith, London. He is also a director of the London Court of International Arbitration (LCIA), Chairman of Arbitration Practice Committee of the Chartered Institute of Arbitrators and Chairman of the International Chamber of Commerce (ICC) Working Party on Intellectual Property Disputes in Arbitration.
First of all I would like to commend the IAI for choosing the subject of anti-suit injunctions against arbitration. This topic is not only high-profile but one that has caused a certain amount of concern in a number of recent cases. Anti-suit injunctions cause many difficulties for all those who are involved in an arbitration, destabilising the parties’ dispute resolution environment.
Anti-suit injunctions are court orders preventing a party from initiating or continuing with alternative proceedings abroad. This remedy originated in common law jurisdictions.1 English courts, for example, started to grant these discretionary remedies two centuries ago.2 Courts today continue to exercise this discretion based on their general powers under the Supreme Court Act 1981 and profess to adopt a restrained approach. In effect, injunctions create an interference with a foreign process with all of the implications of comity and sovereignty involved.3