Notes on Anti-Suit Injunctions and Arbitration

Introduction to Anti-Suit Injunctions and Arbitration

• Anti-suit injunctions (ASI) play a crucial role in international arbitration, focusing on the principle of party autonomy.
• Arbitration is characterized as a private and consensual dispute resolution method that occurs outside national courts.

Need for an Injunction

• Parties may attempt to ignore arbitration agreements and pursue claims in domestic courts.
• ASIs are utilized to prevent actions in forums not contractually agreed upon.

Anti-Suit Injunction Defined

• An ASI is an equitable remedy issued by a court or tribunal that prohibits a party from initiating or continuing legal proceedings in a jurisdiction other than the agreed forum.

Breach of Arbitration Agreement

• Parties can take action when foreign court proceedings breach an arbitration agreement:
  • Request the arbitral tribunal to order withdrawal or stay of proceedings.
  • Apply to the courts at the arbitration seat for similar relief (commonly through ASI).
  • Initiate emergency arbitration when no tribunal is in place.

Jurisdictional Considerations

• Courts in common law jurisdictions are generally more permissive when granting anti-suit injunctions.
• The injunctions are meant to uphold parties' rights and contractual obligations under arbitration agreements.

Controversial Nature of ASIs

• ASIs can be contentious due to perceptions of overriding foreign court authority, though they target parties rather than foreign courts directly.
• Different legal traditions (civil vs. common law) have varying perspectives on ASIs.

Criteria for Granting Anti-Suit Injunctions

• Legal requirements (common law jurisdictions):
  • Valid arbitration agreement binding the party.
  • Court proceedings must breach this arbitration agreement.
  • The claim must fall within the arbitration clause's scope.
  • The arbitration clause must not be void under governing law.
  • Consideration of the potential for strong reasons against granting the ASI by the opposing party.

Legal Framework in England

• Arbitration Act 1996, Section 44:
  • Affirms powers for interim measures like granting an injunction in relation to arbitration.
• Senior Courts Act 1981, Section 37:
  • The court may issue injunctions considered just or convenient to restrain actions in foreign courts.

Key Legal Precedents

• Enka v. Chubb [2020]: Reinforces the judicial authority to grant ASIs in cases tied to English seats of arbitration.
• The Angelic Grace: Establishes that a clear breach of an arbitration agreement justifies granting ASIs without hesitation.
• Ust-Kamenogorsk Hydropower Plant: Clarifies that ASIs can be granted even when arbitration has not commenced, upholding the negative promise of the arbitration agreement.

Application Procedures

• ASIs must be sought promptly; delay can affect court perceptions of necessity and urgency.
• Claims for ASIs should typically be made under CPR 62 to initiate legal proceedings.

Anti-Suit Injunctions for Third Parties

• Third parties can also be subject to ASIs under certain conditions, permitting injunctions if they breach arbitration agreements.

International Considerations Post-Brexit

• Post-Brexit changes have removed previous EU restrictions, enabling more robust ASI granting powers for English courts against foreign proceedings.
• The CJEU's views on ASIs under EU law do not impact the UK courts after Brexit, allowing more extensive jurisdiction.