Author: Dominique T. Hascher*
Published: April 2011
Description: Anti-suit injunctions were originally common-law remedies used to deal with parallel litigation enjoining one of the parties from pursuing litigation (or arbitration) in a foreign court (or before an arbitral tribunal). Foreign proceedings may be restrained if they are vexatious or oppressive, but considerations of comity have relevance in deciding whether to grant an injunction. An anti-suit injunction may be issued by a national court (possibly by an arbitral tribunal) to prevent the principal action from proceeding before another court or tribunal. It is directed at a party, arbitrator, or arbitral institution which it purports to control. More frequently, an anti-suit injunction attempts to disrupt arbitral proceedings or to prevent them from being pursued. It could therefore be more properly called an anti-arbitration injunction. Finally, an anti-suit injunction may even be directed at another anti-suit injunction by a court in another jurisdiction (anti-anti-suitinjunction).
Although not directed at a foreign court, the remedy is inherently controversial because it interferes with the foreign parallel litigation. An anti-suit injunction constitutes an interference by national courts in the arbitration proceedings. The European Court of Justice ruled in the case of Turner v. Grovit that an anti-suit injunction is an unjustifiable interference in the process of the court of a Member State, contrary to the principle of mutual trust underlying the Brussels Regulation.
*Presiding Judge, Court of Appeal (Reims, Champagne).