Anti-arbitration Injunctions Research Articles

The dilution of interim anti-arbitration injunctions in Devi Resources: pro-enforcement approach gone too far?

Abstract Keeping in line with India’s ‘pro-arbitration’ approach, the Calcutta High Court in Devi Resources Ltd v Ambo Exports Ltd recently refused an application seeking to restrain the enforcement of an arbitral award on the ground that the award was passed in violation of an interim anti-arbitration injunction. The Court based its reasoning on the fact that the injunction was ultimately vacated at a later stage (after the award had already been passed), and once such interim injunction has been set aside, it would imply that the injunction had never been passed. On the face of it, this decision seems to be an illustration of Indian courts’ awareness of the importance of minimal intervention in the scheme of promoting international commercial arbitrations. However, on a closer look, one finds that the court’s decision does more harm than good by legitimizing the violation of an anti-arbitration injunction without any consequences. The present article examines the ruling in Devi Resources. It also explores the policy implications of the Court’s decision on the efficacy of anti-arbitration injunctions.

Anti-arbitration injunctions: walking the tightrope

Abstract Anti-arbitration injunctions are a controversial issue in the field of international arbitration. While some commentators decry them as an interference with the autonomy and independence of arbitrators, English and other common law courts steadfastly refuse to renounce them entirely. By reference to the framework established in recent decisions of the English Court of Appeal, the article seeks to forge a middle path between making anti-arbitration injunctions available on a discretionary, case management basis and prohibiting them in all cases. An approach that respects both the rights of arbitrators to determine their own jurisdiction and the rights of courts to protect parties from abuse of the arbitral process is advocated.

Anti-Arbitration Injunctions: Confusion Among High Courts In India

Anti-Arbitration Injunctions: Confusion Among High Courts In India

Indian Courts and Bilateral Investment Treaty Arbitration

Although India has been entangled in close to 15 bilateral investment treaty (BIT) arbitrations, Indian courts have had limited opportunities to deal with these arbitrations. In this paper, we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in the context of anti-arbitration injunctions in BIT arbitration. These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan. Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors. Two cases out of three held that the A&C Act does not apply to BIT arbitration, leading to several questions pertaining to supervisory jurisdiction over BIT arbitration and enforcement of BIT arbitration awards in India. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.

Anti-Suit Injunctions in Judicial and Arbitral Procedures in the United States

Parallel proceedings are on the rise around the world as parties seek to establish a strategic advantage over their opponents by filing competing claims in different fora. Although there are times when multiple actions are allowed or even necessary, one of the most common responses to undesirable litigation or arbitration, at least for parties with access to a court in a common law jurisdiction, involves a motion for an anti-suit injunction. Conventional wisdom, particularly among lawyers and academics in civil law countries that do not provide for anti-suit injunctions, often suggests that U.S. judges are eager to enjoin foreign proceedings so as to protect the jurisdiction of U.S. courts. In fact, anti-suit injunctions are considered to be exceptional remedies that are be granted sparingly. To some extent, this misperception may be based on a few high-profile cases that have caught the attention of proceduralists around the world. However, the problem may also stem from a significant split among U.S. courts in how to respond to requests for anti-suit injunctions. While all state and federal courts consider anti-suit injunctions to be extraordinary in nature, some circuits have adopted a more relaxed toward granting this type of relief and thus may fueling international consternation. This Article seeks to set the record about anti-suit injunctions straight by analyzing the various tests relating to anti-suit injunctions and identifying when such relief is most likely to be granted. In so doing, the discussion not only considers standard anti-suit injunctions in both domestic and international settings but also addresses some of the more unusual procedures, such as anti-arbitration injunctions, anti-enforcement injunctions, and anti-anti-suit injunctions. While much of the analysis focuses on situations involving competing judicial actions, the text also covers the growing number of cases involving both litigation and arbitration.

Anti-arbitration injunctions and their compatibility with the New York convention and the Indian law of arbitration: future directions for Indian law and policy

Despite the controversial nature of anti-arbitration injunctions, they have emerged as one of the possible remedies in a number of jurisdictions. However, their existence under international law is far from clear. Consequently, each jurisdiction has its own rules regarding their existence and availability. In this connection, this article will address the question of whether anti-arbitration injunctions are legally compatible with the scheme of New York Convention and the UNCITRAL Model Law on International Commercial Arbitration. For this purpose, besides the legal analysis of the relevant provisions of the international instruments and the decisions of international arbitral bodies on them, the domestic legal practice of the UK, US, and France will also be considered. However, the main focus of the article will be to critically evaluate the Indian legal position on the issue. Finally, as a part of its Conclusion, it will outline the directions for the future of Indian law and policy relating to the grant of anti-arbitration injunctions in India.

Are anti-arbitration injunctions a malaise? An analysis in the context of Indian law

Until recently, Indian courts have adjudicated upon their authority to issue anti-arbitration injunctions in the context of foreign-seated arbitrations in a haphazard manner, without examining the source or compatibility of this power with either the (Indian) Arbitration and Conciliation Act, 1996 or the Convention on Recognition and Enforcement of Foreign Awards, 1958. Deviating from this trend, two recent decisions of the Supreme Court of India, viz Chatterjee Petrochem and World Sport Group, have deliberated upon this issue and interestingly, they have followed an inconsistent approach. This has led to uncertainty over whether Indian courts may entertain a civil action seeking to restrain foreign arbitral proceedings. Accordingly, in this article, the authors analyse the existing position of law in this regard. They elucidate the early Indian approach towards anti-arbitration injunctions, the relevant provisions of the 1996 Act, and the comparative framework in which the current position should be examined. The authors conclude that the decision in World Sport Group is in consonance with the interpretation of the 1996 Act. Further, it reflects international best practice, according to which anti-arbitration injunctions may be awarded where the arbitration agreement is null and void or inoperative or incapable of being performed, and the foreign arbitral proceeding is vexatious and oppressive. International Convention: Convention on the Recognition and Enforcement of Arbitral Awards, 1958, 330 UNTS 38 (1959) [‘New York Convention’].Domestic Legislation: Arbitration and Conciliation Act, 1996 (August 16, 1996) (India)Judicial Decisions: Chatterjee Petrochem Co v Haldia Petrochemicals Ltd, 2013 (15) SCALE 45 (Indian Supreme Court)World Sport Group (Maurities) v MSM Satellite (Singapore), AIR 2014 SC 968 (Indian Supreme Court)

Anti-Arbitration Injunctions in Cases Involving Investor-State Arbitration: British Caribbean Bank Ltd. v. The Government of Belize

Over the last few years, the international legal community has become increasingly interested in anti-arbitration injunctions. Although very few courts have actually addressed this issue, the Caribbean Court of Justice (CCJ) recently considered an anti-arbitration injunction in British Caribbean Bank Ltd. v. The Government of Belize. This comment outlines the parameters of the decision and evaluates the ramifications of certain key elements, including the recognition that courts have a limited but undeniable ability to issue anti-arbitration injunctions, statements that BIT arbitrations are inherently contractual in nature, and the CCJ’s basic understanding of the international investment regime.

US Courts and the Anti-Arbitration Injunction

This article explores an important area of US arbitration law: whether a US federal court has the authority, under the Federal Arbitration Act, to enjoin an international arbitration. Despite New York’s status as the preeminent US jurisdiction for lawsuits concerning the recognition and enforcement of international arbitration agreements and awards, there has been some lack of analytical consensus among the federal district courts of New York as to the basis for and propriety of granting an ‘anti-arbitration injunction’ in the international arbitration setting. The Second Circuit Court of Appeals has yet to rule on the issue. This Article discusses US federal court jurisprudence on the subject of anti-arbitration injunctions and proposes a framework by which US federal courts might analyze whether they can and should issue anti-arbitration injunctions of international arbitrations.

Achieving the Dream: Autonomous Arbitration

DO YOU dream? When do you dream? What do you dream about? Do you dream about international arbitration? Is there a dream for international arbitration? Is the concept of delocalised arbitration, or arbitration not controlled by national law, a dream or nightmare? Is autonomous arbitration a reality, or is ‘every arbitration necessarily … a national arbitration, that is to say, subject to a specific system of national law’?1 As long ago as the mid-1950s, when participating in the drafting of the New York Convention, Frederic Eisemann, then Secretary-General of the ICC International Court of Arbitration, lobbied for a denationalised, international arbitration award.2 It was then too early for international arbitration to be detached from national law. Nonetheless, in many ways the New York Convention laid the seeds for autonomous international arbitration. The ideal and expectation is for international arbitration to be established and conducted according to internationally accepted practices, free from the controls of parochial national laws, and without the interference or review of national courts. Arbitration agreements and awards should be recognised and given effect, with little or no complication or review, by national courts. By corollary, the nightmare scenario exists in situations where national laws control a narrow right of access and the subject matters capable of being resolved in international arbitration. These nightmare scenarios undermine the international arbitration process. There can be no justification for national courts to intercede in the arbitration process or second-guess the determinations and analyses of an international arbitration tribunal. Courts which do so for parochial local law reasons, or because the court thinks its procedures and analyses are preferable and more reliable than those that exist in arbitration, ignore the intention and expectation of the parties and the autonomy of international arbitration. Nightmare scenarios include anti-arbitration injunctions. These can be …