Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. United Kingdom.
    1. U.K. courts have granted anti-suit injunctions to prevent U.K. citizens from suing abroad to force the parties into the U.K. courts. See, e.g., Société Nationale Industrielle Aérospatiale v. Lee Kui Jak, [1987] 1 App. Cas. 871 (P.C.) (appeal taken from Brunei) (anti-suit injunction baring litigants from litigating Brunei helicopter crash liability in Texas, in favor of its resolution in Brunei); see also British Airways Board v Laker Airways [1984] Q.B. 142 (C.A.), reversed, [1985] A.C. 58, 89 (H.L.).
    2. U.K. courts can grant anti-suit injunctions even if they are not presiding over a substantive proceeding between the parties. See Bank of Tokyo Ltd. v. Karoon, 1987 App. Cas. 45, 60 (appeal taken from Eng.); South Carolina Ins. Co. v. Assurantie N.V., 1987 App. Cas. 24, 45 (appeal taken from Eng.).
    3. Since anti-suit injunctions are equitable in nature, an injunction will be granted only where necessary to prevent injustice. British Airways Board, 1985 App. Cas. 58, 70; Castahno v. Brown & Root, [1981] App. Cas. 557, 573 (appeal taken from Eng.).
    4. The House of Lords has held that a U.K court may not grant an anti-suit injunction unless (i) the U.K. court has a strong interest in the case and (ii) the non-U.K. proceedings are vexatious and oppressive. Airbus Industrie GIE v. Patel, [1998] 2 All E.R. 257, 263-71 (H.L.) (also reported in [1998] W.L.R. 686, [1998] 1 Lloyd's Rep. 631, [1998] 148 New L.J. 551, [1998] 95/18 L. Soc'y Gazette 32, [1998] 142 Sol. J. LB139, and The Times (London), Apr. 6, 1998, at 41).
      1. Under the House of Lords' test, a U.K. court has a sufficient interest in the case if the foreign proceeding will impinge on its jurisdiction or evade its public policy. Patel, [1998] 2 All E.R. at 267. A party can make this showing by proving that the United Kingdom is the natural forum for the dispute. Id. at 269.
      2. The House of Lords indicated that there are two exceptions to the requirement that the British court have a strong interest in the case.
        1. U.K. courts may intervene in single forum cases, where a claim exists only in the non-U.K. court, if there is an otherwise strong enough connection.
        2. U.K. courts may also intervene in extreme cases (such as where the United Kingdom would not enforce the non-U.K. country’s laws as a matter of comity). This exception is designed to ensure that the U.K.'s strict comity test is not applied “too rigidly.” Patel, [1998] 2 All E.R. at 270.
    5. The power of the U.K. courts to restrain a party from instituting or prosecuting a proceeding in a non-U.K. country does not flow from “any pretension to the exercise of judicial . . . rights abroad,” but rather from the fact that the enjoined party is subject to the in personam jurisdiction of the U.K. court. See Lord Portarlington v. Soulby, 3 My. & K. 104, 108 (Ch. 1834); Man (Sugar) Ltd. v. Haryanto (No. 2), 1 Lloyd's Rep. 429 (C.A. 1991).
  2. Canada.
    1. Canada’s leading case on anti-suit injunctions is Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993] 1 S.C.R. 897, which reversed an anti-suit injunction that had barred Canadian citizens from bringing a tort action in Texas state courts.
    2. Amchem held that anti-suit injunctions may only be granted to prevent “serious injustice.” Id. at 914 (“In some cases a serious injustice will be occasioned as a result of the failure of a foreign court to decline jurisdiction. It is only in such circumstances that a court should entertain an application for an anti-suit injunction.”).
    3. Canadian courts will first determine whether the domestic forum is the natural forum with the closest connection to the action and the parties or, in contrast, whether there is another forum that is clearly more appropriate. Then it will apply Canadian principles of forum non conveniens. The Canadian court will deny the anti-suit injunction if the non-Canadian court could reasonably have concluded that no other forum was clearly more appropriate. However, even if the non-Canadian court’s forum non conveniens evaluation was unreasonable, the Canadian court will still deny the anti-suit injunction if the injunction would unjustly deprive the plaintiff of an advantage in the non-Canadian jurisdiction that is not available in Canada. Id. at 920.
    4. The Amchem test is designed to ensure that the action is resolved by the jurisdiction with the closest connection to the dispute and the parties where no party secures an inappropriate juridical advantage. Id. at 912.
  3. Australia.
    1. Australia’s principal case on anti-suit injunctions is CSR Ltd. v Cigna Ins. Australia Ltd. & Ors. (1997) 146 ALR 402. In CSR, Australia’s High Court announced the standards for granting anti-suit injunctions.
    2. There are two grounds upon which a party may seek an anti-suit injunction in Australia. The standard for granting the injunction turns on which ground is being invoked, the courts’
      1. inherent jurisdiction to protect the integrity of the court's processes; or
      2. equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights.
    3. A court may rely on its inherent jurisdiction to issue an anti-suit injunction if non-Australian proceedings would have a tendency to interfere with proceedings pending in Australia. Id. at 433.
      1. Examples of categories where interference is possible: estate administration, bankruptcy proceeding, wind-up proceeding.
      2. These examples are not all-encompassing – the courts’ power to grant an anti-suit injunction is to be exercised when the administration of justice so demands. Id. at 433.
    4. When the Australian court’s equitable jurisdiction is invoked, a two-step test governs whether the court will grant an anti-suit injunction.
      1. First, the court must determine that it is an appropriate forum to hear the matter. Id. at 437-38. If the court finds that it is a clearly inappropriate forum, then it must deny the anti-suit injunction.
      2. If the first step of the test is met, the court must consider whether the foreign suit involves unconscionable conduct or an unconscientious exercise of legal rights.
  4. India.
    1. The leading Indian case on anti-suit injunctions, Modi Entertainment Network v WSG Cricket PTE Ltd., AIR (2003 SCW 733), was decided in the context of an agreement dictating that the exclusive forum for resolving disputes would be the United Kingdom, despite the absence of any other connection to the United Kingdom.
    2. India’s Supreme Court denied the anti-suit injunction. “We find no valid reasons to grant anti- suit injunction in favour of the appellants in disregard of the jurisdiction clause.” “We are of the view that the proceedings in the English Court for recovery of the minimum guarantee amount under the contract cannot, at this stage, be said to be oppressive or vexatious.” Id.
    3. Given the standards that will be applied by the Indian courts, it appears likely that an Indian court would not issue an anti-suit injunction without a showing that the U.S. forum is at least “oppressive or vexatious.”
  5. Japan.
    1. One commentator has stated that “Japanese courts may in certain cases order the party to refrain from continuing foreign proceedings.” Masato Dogauchi, “Concurrent Litigations in Japan and the United States,” 37 Japanese Ann. Int'l L. 89, 93 (1994).
    2. One basis for such an injunction would likely be Japan’s Civil Preservation Law (Minji hozen ho), Law No. 91 of 1989. That statute authorizes the issuance of injunctive orders to preserve a litigant's rights. Id. The party opposing the anti-suit injunction, however, would likely contend that this statute is only designed to protect substantive rights and cannot be invoked as a basis to stay a non-Japanese proceeding. Id., Art. 1.
  6. Spain.
    1. Commentators have stated that “the availability of anti-suit injunctions under Spanish law is uncertain.” “Litigation Under the Shadow Of An Exequatur: the Spanish Recognition of U.S. Judgments,” 38 Int’l Lawyer 945 (Winter 2004).
    2. Moreover, “U.S. anti-suit injunctions are not recognized in Spain.” Id.

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