Proskauer Rose International Practice Guide Proskauer Rose LLP | Proskauer.com
      Proskauer on International Litigation and Dispute Resolution:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Federal courts in the U.S. have concluded that they have the authority, under given circumstances, to enjoin, not the non-U.S. proceeding itself, but those subject to the U.S. court’s jurisdiction from pursuing non-U.S. litigation. E.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 625, 626 (5th Cir. 1996);
  2. However, circuit courts differ on what standard to apply in determining whether to enjoin a party from participating in a non-U.S. proceeding. Kaepa, 76 F.3d at 626. In general, there are three standards that courts have articulated when addressing this issue: a restrictive standard, a liberal standard, and an intermediate standard;
  3. Typically, there are two general requirements that any injunction-seeking party must meet before a court will contemplate granting the extraordinary relief of an anti-suit injunction: the parties in the non-U.S. and U.S. actions must be the same, and resolution of the case before the enjoining court must be dispositive of the the action in the non-U.S. court. See China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987); Mut. Serv. Cas. Ins. Co. v. Frit Indus., Inc., 805 F. Supp. 919 (M.D. Ala. 1992), aff’d, 3 F.3d 442 (11th Cir. 1993);
    1. Practice Tip: If seeking to commence parallel non-U.S. proceedings, consider whether asserting different parties and issues in the U.S. and non-U.S. proceedings will help to ward off an anti-suit injunction. See Mastercard Int’l Inc. v. Fed’n Internationale de Football Assoc., 2007 WL 631312 (S.D.N.Y. Feb. 28, 2007).
    2. Practice Tip: Contrariwise, if you are intent on trying to set up a motion for an anti-suit injunction, consider how closely you can draft your pleading to mirror the facts, claims, and issues in the other jurisdiction.
  4. Additional China Trade Factors: In China Trade, the United States Court of Appeals for the Second Circuit suggested that courts should consider five additional factors once an injunction-seeking party has met the threshold requirements. Those additional factors are:
    1. potential frustration of a policy in the enjoining forum;
    2. whether the non-U.S. action would be vexatious;
    3. any threat to the issuing court’s in rem or quasi in rem jurisdiction;
    4. whether proceedings in the other forum prejudice other equitable considerations; or
    5. whether adjudication of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.

China Trade, 837 F.2d at 35.

 

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