Anti-Suit Injunctions Issued by National Courts In Favour of Arbitration: Need for Greater Judicial Restraint

Abstract

Anti-suit injunctions restraining a party from pursuing proceedings in a foreign court, in breach of an arbitration agreement, have typically been issued by common law Courts to enforce arbitration agreements. However, such injunctions violate the judicial sovereignty of foreign courts, prevent the Court from adjudicating upon disputes before it and restrict access to Courts. The fact that these injunctions operate in personam do not justify interference with foreign proceedings. This paper argues that such injunctions are not contemplated by the UNCITRAL Model Law on International Commercial Arbitration, 1985 and The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. The paper further advocates adopting a definition of comity, which is in conformity with the principle of equality of courts, and is akin to the principle of ‘mutual trust’ underlying the Brussels I Regulation. The paper concludes that greater judicial restraint ought to be exercised in issuing such injunctions, which are becoming unnecessary in view of the increasingly arbitration friendly jurisprudence around the world.