Anti-Suit Injunctions in European Transnational Litigation: Past, Present and Post-Brexit Future of an Unusual Remedy

Abstract

Anti-suit injunctions are the frontline in the clash of civil and common law. Of course, the imbalance of powers between the systems’ courts is critical. However, both approaches have their advantages. Whilst civil law approach establishes harmony between Member States’ courts and provides for a high degree of legal certainty and predictability, the common law approach gives greater flexibility to judges in order to do justice in the individual case, which at times is necessary to prevent abusive litigation tactics. Whilst the Court of Justice of the European Union (CJEU) rightfully held that the Brussels regime does not allow for anti-suit injunctions in non-obligation-based cases, the remedy should not have been banned in obligation-based cases. Civil law dominated Europe has unfortunately missed the opportunity to learn from the common law approach in a rather arrogant manner. Now however, it is time to look forward. It is crucial to realize that even greater conflicts may arise from 1 January 2021, but that the future also provides a unique opportunity to resolve the issue once and for all. In the eye of the inevitable reemergence of the anti-suit injunction it is high time to address the issue. Otherwise, parties involved in cross-border litigation in Europe may be in danger of having to litigate with minimum legal certainty or even becoming playing balls amongst jurisdictions. Such a situation would scare off parties and decrease Europe’s attractiveness as a legal venue. Therefore, it is not only in the parties’, but also in both the UK’s and EU-27s interest to resolve the issue of anti-suit injunctions in transnational litigation in Europe.