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. Party Opposing Anti-Suit Injunction Should Consider Pre-Emption. A party that wants to avoid the issuance of a foreign anti-suit injunction designed to stop a U.S. litigation should consider pre-empting the non-U.S. injunction by seeking an “anti-anti-suit injunction” from the U.S. court. See, e.g., Owens-Corning Fiberglas Corporation v. Baker, 838 S.W.2d 838 (Tex. App. 1992).
  2. Pre-Emptive Injunction May Be Difficult to Obtain. The best known U.S. request for an anti-anti-suit injunction was discussed in Laker Airways Ltd. V. Sabena, Belgian World Airlines, 731 F.2d 909, 926-34 (D.C. Cir. 1984), which reversed the grant of the U.S. injunction.
  3. Pre-Emption May Turn on Circuit Where U.S. Suit is Pending. While it would likely be difficult to secure the U.S. injunction in most courts, there is a split in the Circuit courts regarding the standard to apply to requests for anti-suit injunctions affecting non-U.S. litigation. Accordingly, the moving party’s chances may well be affected by whether the court adopts the “conservative” or “liberal” approach to addressing such motions.
    1. Conservative Approach
      1. The First, Second, Third, Sixth, Eighth and District of Columbia Circuits have adopted the “conservative approach.” See Goss Intern. Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 325 (8th Cir. 2007); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 17 (1st Cir. 2004); Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 161 F.3d Cir. 2001); Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1355 (6th Cir. 1992); China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35-37 (2d Cir.1987); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926-34 (D.C. Cir. 1984).
      2. Under the conservative approach, the U.S. court will only issue an anti-suit injunction to bar the non-U.S. suit if the movant demonstrates (1) the non-U.S. action would prevent U.S. jurisdiction or threaten a vital U.S. policy, and (2) U.S. domestic interests outweigh concerns of international comity.
    2. Liberal Approach
      1. The Fifth and Ninth Circuits follow the “liberal approach.” E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 989-91 (9th Cir. 2006); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627-28 (5th Cir. 1996). The liberal approach has to some degree been endorsed by the Seventh Circuit as well. Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 430-31 (7th Cir. 1993).
      2. The liberal approach to motions for anti-suit injunctions places less emphasis on comity and authorizes anti-suit injunctions where needed to avoid duplicative and vexatious non-U.S. litigation and inconsistent judgments.
    3. This topic is further discussed in Chapter 10 of this Guide.

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