anti-suit injunctions

An anti-suit injunction is a court order requiring a person to refrain from commencing litigation or cease litigation in the courts of another country. Courts of countries do not have power to regulate proceedings or the jurisdiction of courts in other countries. English courts do however have power to regulate the conduct of legal persons within its jurisdiction, in the exercise of its equitable in personam jurisdiction. As such, it would amount to a contempt of court to continue proceedings in an overseas jurisdiction when an anti-suit injunction has been made.  Accordingly, the order is not made against the foreign court.

Anti-Suit Injunctions

The grant of anti-suit injunctions is an exercise of the court’s extraterritorial jurisdiction in that the order is intended to apply outside the boundaries of the jurisdiction of English courts. Grants of such orders are rare as they interfere with the justice systems of other countries and are contrary to the principle of comity. The relief must be applied for promptly, and before the foreign proceedings are too far advanced.

Basis for Injunctions

A finding of forum conveniens of English Court of itself is inadequate to justify the making of an anti-suit injunction. The applicant must positively show that the foreign jurisdiction is also forum non conveniens. A further requirement is that, in the circumstances, commencement or continuation of foreign proceedings is oppressive or vexatious.

Instances satisfying these criterion include those where:

1. the litigation has not been commenced in good faith;
2. the law of the foreign forum is significantly different to the law that would be applied in the natural forum for the dispute;
3. the foreign proceedings involve the exercise of the extraterritorial jurisdiction of the courts hearing the dispute; and
4. the foreign proceedings are instituted with a view to collate evidence that will be used subsequently in English proceedings.

The remedy may also be available where litigation overseas infringes a legal or equitable right of a party within the jurisdiction of English courts. For instance, the parties entered into a jurisdiction agreement binding the parties to commence litigation in respect to the relevant subject-matter in English courts.

Requirements for Anti-Suit Injunctions

Instances where an anti-suit injunction may be obtained include:

1. where a party to a contract commences proceedings in a foreign jurisdiction and the contract contains an exclusive jurisdiction clause designating England as the forum for disputes arising under the contract;
2. where to commence or continue proceedings abroad would be unconscionable.
3. to prevent enforcement of a foreign judgment obtained by fraud.
4. to enforce the res judicata effect of an English judgment.
5. protection of assets overseas which would be recoverable pursuant to English insolvency legislation.

Simply because the commencement of proceedings in the overseas jurisdiction might or does offend English principles of forum non conveniens is inadequate to obtain injunctive relief. Although such may play a part in deciding whether or not the anti-suit injunction should be awarded, it is inadequate in its own right.

Also, the court will consider whether:

1. the respondent to the application would be deprived of any litigious advantage in England that would be available in the foreign proceedings;
2. the foreign proceedings have involved application for an anti-suit injunction against English proceedings where the case is obviously appropriate for hearing in England.

A distinction should drawn between seeking redress for the substantive issues of a case before an English Court on one hand, and on the other:

1. seeking provisional measures or relief;
2. obtaining security for the claim; and
3. enforcement of a judgment in respect to the substantive issues.

Thus, depending on the circumstances of the case, proceedings elsewhere may be effective and not made the subject of an anti-suit injunction where they are ancillary to the resolution of the substantive dispute to be determined by an English court.

When a judgment has been obtained in a foreign jurisdiction in breach of an anti-suit injunction made in England, the judgment will not be enforceable in England, and proceedings for contempt of court may be commenced against the legal person obtaining the foreign judgment in breach of the injunction.

Permutations

If the person who is to be made the subject of an anti-suit injunction is not in the jurisdiction of the court and they do not submit to the jurisdiction, the claimant may seek permission to serve the claim form out of the jurisdiction in order to invoke the power of the court. If however enforcement of such an order is unlikely to possible, the exercise of the jurisdiction to grant will usually be declined.

Injunctions have been granted where the foreign state has conducted itself in such a fashion to deprive it of the usual respect for the principle of comity. An English court may find that England is the forum conveniens, but in the face of concurrent foreign litigation, decide that it is not an appropriate case for an anti-suit injunction. Accordingly, both sets of proceedings from an English perspective would proceed. The parties would be left to litigate in two jurisdictions.