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Introduction to anti-suit injunctions
1. Anti-suit injunction (ASI) = restrains proceedings in a foreign jurisdiction. May be used for the following purposes:
a. To ensure a case can be heard only in England b. To prevent enforcement abroad of a foreign judgment improperly obtained c. Or may be an anti anti-suit injunction.
2. Order in personam: i.e. the applicant asks the court to grant an injunction against the respondent to restrain the respondent from commencing or continuing proceedings in another court. It is an equitable injunction, and equity only acts in personam.
a. Usual situation: Generally, the respondent will be the claimant to the proceedings in the foreign court and often the defendant in English proceedings—though not necessarily.
b. **In PQ: Identify the applicant and respondent (i.e. the person stopped from starting proceedings abroad), rather than in terms of claimant/defendant.
Parallel proceedings are not per se objectionable. Nevertheless, they can be regarded as expensive &
inefficient, encouraging a race to judgment and resulting in competing judgments. → Not conducive to proper administration of justice.
3. s.37 Senior Courts Act 1981 provides for the power of the court to grant an ASI:
"(1) The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so. (2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just."
a. Exercise with caution, though there is discretion: Castanho v Brown & Root: Power should be exercised with caution but the categories of justice are not closed.
b. Do not be "policeman of the world": Airbus v Patel: There is no embargo on concurrent proceedings and the English court should beware of operating as "the policeman of the world".
4. Enforcement of ASI: Difficult to enforce injunctive relief abroad.
a. Contempt of court: ASIs are usually enforced by personal penalties for non-compliance: the respondent will be in contempt of court if he breaches the injunction and subject to a potential fine, award of damages, or even imprisonment: Mobile Telecommunications v HRH Prince Hussam (possible to commit contempt due to non-compliance with an ASI in respondent's absence).
b. Prevented from participating in English proceedings : More significantly in practice, respondent may be prevented from participating in substantive proceedings before the English court. If respondent is a defendant to English proceedings, it will be at risk of a default judgment.
c. Not recognisable/enforceable: A judgment obtained in breach of the ASI is not recognisable or enforceable in England.
Extraterritoriality and comity:
ASIs may be regarded as a quasi-criminal exercise of power having an (indirect) effect on the foreign court.
This has been criticised on grounds of extraterritoriality and comity: Collins LJ, Masri v Consolidated
Contractors: "the mere fact that an order is in personam and is directed towards someone who is subject to the personal jurisdiction of the English court does not exclude the possibility that the making of the order would be contrary to international law or comity, and outside the subject matter jurisdiction of the English court
o Extraterritoriality = ASIs may be an extraterritorial use of the English court's powers, interfering with the determination of their own jurisdiction
A strong view of comity would hold that ASIs may only be granted where the foreign court has exercised an exorbitant jurisdiction—this was adopted in Canada in Achem Products v
Workers Compensation Board.
An intermediate view would hold that ASIs may only be granted where necessary to prevent interference in the granting court's jurisdiction / to protect strong public policies: see China
Trade v MV Choong Yong.
The English (weak) view holds that comity is a mere element in the exercise of the court's discretion: see below (point 5a).
Reasons to temper a strong view of comity—i.e. not leaving it completely to the foreign 1
court itself to stay/dismiss proceedings "improperly" brought before it: (a) If the foreign court has no forum conveniens doctrine, a challenge to the FC's jurisdiction may not be possible. (b)
If a challenge to foreign court's jurisdiction may involve a significant delay or cost. (c) If the foreign court simply takes a different view on a jurisdiction/arbitration agreement. (d) If the foreign court takes a different view on the applicable law.
Note, however, that the effect on the foreign court is only indirect: there is no direct order to the foreign court;
the ASI merely acts on the conscience of the Respondent.
5. Factors a. Extraterritoriality or comity: In English courts, comity is generally understood in a qualified form,
applied case-by-case, taking into account various factors.
i. High point of regarding comity: Star Reefers v JFC:
FACTS: Star Reefers was a company that chartered ships. Had a contract with an arbitration clause for English arbitration. JFC were not a party to the charter contract but had signed letters guaranteeing the payment of the charter monies. SR relied on the guarantee to enter the contract. Went to arbitration against K (charterees), who brought in JFC. JFC sued SR in
Russia instead. SR then sued JFC in England for payment under the guarantee and sought an
ASI against the Russian proceedings. In English law, JFC would have to pay—but not in
HELD: No injunction granted. The court noted that the power to grant an ASI had to be carefully exercised; JFC was not acting wrongfully to start proceedings in Russia, because they were not party to the arbitration clause, and so had no reason not to start proceedings there. No injustice was done.
COMITY TAKEN INTO ACCOUNT: One of the arguments made was that the English court should respect the Russian court's ability to determine the extent of their own jurisdiction.
ii. But may be overridden: Stichting v Kyrs PC: Comity can be overridden by the need to protect
English national interests or prevent a violation of international law principles—e.g. in international insolvency.
iii. Factors court may take into account: Court may be less likely to grant an injunction:
where foreign court has asserted jurisdiction by employing rules which mirror those in
where the injunction is not essential: e.g. where the applicant has not exhausted any remedies available in the foreign court; where English proceedings will be concluded before the foreign proceedings.
But comity is particularly less significant where an ASI is sought to enforce an exclusive
English jurisdiction/arbitration agreement.
b. Abuse of rights: Are the foreign rpoceedings an abuse of the rights of a party in the English court? This argument presupposes that there is some "right" to a decision of the English court alone and not of the foreign court.
i. Especially breach of contract: Where there is a breach of an arbitration clause in a contract, for example, this argument is most obviously applicable.
ii. (But note that the issue before the English court when an ASI is sought is a separate issue from whether the English court should hear the case: jurisdictional competence is separate from abuse of process.)
c. Access to justice: An ASI may deny the respondent access to justice, which may be a significant objection to the granting of relief.
i. May only be significant in English law if: there is no alternative access to justice in England and, arguably, not when the Respondent's conduct is inherently wrongful in some way.
d. Brussels Regime: An ASI is probably incompatible with the Brussels regime, which upholds the principle of mutual trust and confidence (taking the place of comity)—accordingly, it is very difficult to obtain an
ASI within BIRR.
Justifications for ASIs:
Protecting private rights of the applicant:
o Preventing a breach of contract (where foreign proceedings are in breach of an exclusive jurisdiction or arbitration clause), especially where damages are insufficient relief.
o Preserving applicant's procedural rights (where foreign proceedings are intended to cause the applicant 2 to discontinue English proceedings)
Preventing injustice (where exorbitant jurisdiction is invoked against the applicant)
To ensure proceedings are continued under BIRR rules: Gray v Hurley: Party domiciled in England was sued elsewhere; there was an ASI against third-state proceedings. Raised the issue of whether
Art.4 BIRR gave a party a right not to be sued outside England: this has since been referred to the
Reflecting public interest considerations:
o Preserving the integrity of the granting court's jurisdiction: e.g. to prevent re-litigation of a matter previously determined in England
Promoting national public policy considerations such as ensuring efficient resolution of a dispute
6. Generally, pre-conditions for granting an ASI are as follows—but judicial decisions are often explained using different terminology, so it is hard to organise these pre-conditions:
a. The overriding purpose is to prevent injustice to the applicant: s.37 Senior Courts Act 1981.
b. The conduct of the respondent (i.e. C in the foreign proceedings) must be unconscionable: given that the source of the relief is equitable.
c. The order acts on the respondent, not the court itself: the order is in personam.
d. The English court must have personal jurisdiction over the respondent: equity can only regulate the conduct of a party that is properly before the court.
e. The English court must have an interest in granting relief, i.e. beyond personal jurisdiction, the
English court must also have subject-matter jurisdiction (i.e. that, generally, proceedings on the substance of the matter are possible in England): see Airbus Industrie v Patel.
Problem Question approach to the exercise of power to grant anti-suit injunction
Relief depends on 3 (distinct but possibly overlapping) stages:
1. The court must have jurisdiction to grant relief: R must be subject to jurisdiction of the court, since equity can only regulate the conduct of a party that is properly before the court.
a. If ancillary to existing substantive proceedings : If the injunction is ancillary to existing substantive proceedings, R will be subject to the jurisdiction as a claimant or as a defendant via BIRR grounds, or via national grounds of jurisdiction—including forum conveniens, or b. If freestanding "autonomous" ASI proceedings: If proceedings are brought only for the grant of the injunction (the single forum case), then:
i. R must be subject to the jurisdiction under appropriate ground (BIRR domicile, or national grounds such as the presence of R (service out may be possible—but not clear through which gateway—possibly CPR PD 6B r.3.1(5))), and ii. Additionally, the English court must have a legitimate interest in the dispute (Airbus v Patel);
the "legitimate interest" issue is only really live in "single form" cases.
Authority: Airbus Industrie v Patel:
o FACTS: P was a family that had lost various relatives in a crash in India on an Airbus plane. They sued in India. P had obtained a judgment in India, but it wasn't very generous. A paid P under this judgment. P then sued Airbus in the US & UK. The latter proceedings were stopped by the English court. A then sought an ASI in England for the US proceedings.
o HELD: English court declined to issue an ASI for US proceedings because it had no legitimate interest in the dispute: "comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which an ASI entails."
Will be met in 4 situations:
o Substantive proceedings pending in England
Substantive proceedings concluded in England
The English court has exclusive jurisdiction in the substance of any dispute between the parties (e.g. through an exclusive jurisdiction or English arbitration agreement)
o The English court has an "overwhelming connection" with the dispute (e.g. all the elements in the dispute relate to England): Midland Bank v Laker Airways.
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