Anti-Suit Injunctions in Private International Law

In general terms this lecture is concerned with the power of a court to restrain, by way of
injunction, a party from instituting or from continuing proceedings in a foreign court. It is a
power that is virtually unknown outside Common Law jurisdictions. I should first explain the
meaning to be attached to the word “foreign” in this context. By foreign proceedings I
include, not only proceedings in a foreign nation, but also proceedings in another State or
Province which forms a constituent part of the same (usually federal) nation. For my present
purpose a State Court sitting in New York would, for example, regard a State Court sitting
across the Hudson River in the State of New Jersey as foreign; so, too, a Court sitting in the
Canadian Province of Ontario would regard a Court sitting in the Province of British
Columbia as foreign.

The power to restrain the party (or potential party) to the foreign proceedings is a power to
grant what is called an anti-suit injunction. Such injunctions are, as anyone acquainted with
Common Law systems will know, in a strict sense the creation of equity rather than common
law. However, they are a feature of the Common Law in the wider and more important sense
that, as I have said, they are virtually unknown outside Common Law countries. I mention the
fact that in a Common Law country an injunction is a form of equitable rather than (in the
narrow sense) common law relief, not in order to create terminological confusion, but in order
to emphasise that, in accord with the fundamental distinction between common law and
equitable remedies, the availability of the latter is in large measure discretionary.

In any country a defendant (actual or potential) when faced, perhaps unexpectedly, with
foreign proceedings (current or anticipated) will often have several options open to him. He
may decide to defend the action; he may decide simply to ignore it; he may in some
circumstances launch counter-proceedings elsewhere. Sometimes there may also be various
other procedural possibilities which fall short of recourse to anything so apparently draconian
as the anti-suit injunction.

Why then have anti-suit injunctions been seen as necessary in an increasing (albeit in fact still
relatively small) number of cases in Common Law countries?
 2

The answer must largely lie in the various disadvantages which will attach in some
circumstances to each of these various options.

To defend the foreign action, which may well be prudent if the defendant has substantial
assets in the foreign country, is almost certain to be expensive and time-consuming even if the
defendant is successful. This will be particularly unfair if his success had, in the event of his
participation in the foreign proceedings, been clearly predictable.

To ignore the foreign proceedings could be dangerous unless the defendant has no assets in
the foreign country and does not anticipate having any assets there in the future, and
moreover it is not likely that any judgment given against him would be enforced elsewhere in
a court having jurisdiction over him and sitting in a country where he does have assets.

The launching of counter-proceedings elsewhere might be helpful if they could be begun at a

Another option might be to seek a declaration of non-liability from a friendly court. But, even
if such an application were to be successful, its effectiveness might well often be limited in
practice, costs again being irrecoverable. And so it has been that in Common Law
jurisdictions another, and in a sense a more direct, option has been developed, and in certain
circumstances has been made available to an unfairly beleaguered defendant (or potential
defendant) in foreign proceedings. English courts have for a long time exercised jurisdiction
to restrain a party from instituting or continuing proceedings in a foreign court by way of anti-
suit injunction. In 1834 in Lord Portarlington v. Soulby1 the Lord Chancellor, Lord
Brougham, had pointed out that this jurisdiction is grounded “not upon any pretension to the
exercise of ... judicial rights abroad”2 but upon the fact that the party, to whom the order is
directed, is subject to the in personam jurisdiction of the English court. However, it must be
admitted that, although the injunction only operates in personam against a party to the foreign

1
(1834) 3 My. and K. 104.
2
Ibid. 108.
 3

proceedings, it can, if effective, sometimes operate as an interference, albeit indirect, with the
process of the foreign court.

In these circumstances it is not surprising that the unwillingness of non-Common Law courts
themselves to grant anti-suit injunctions is accompanied by a marked reluctance on their part
to recognise, or give effect to, the grant of such injunctions by Common Law courts. In 1989
the Brussels Civil Court held that an American anti-suit injunction could not be recognised in
Belgium because it was repugnant to Belgian public policy in combination with Article 6 of
the European Convention on Human Rights.3 In 1988 the Luxembourg Court of Appeal held
that, as a matter of principle there can be no such thing as an anti-suit injunction (let alone an
extra-territorial anti-suit injunction) under Luxembourg law.4 In 1996 in Re the Enforcement
of an English Anti-Suit Injunction5 the Dusseldorf Regional Court of Appeal held that the
service of an anti-suit injunction in Germany had to be refused under Article 13 of the 1965
Hague Service Convention. There the petitioner had obtained an injunction from the High
Court in England ordering a German resident not to proceed against the petitioner, in relation
to a contractual dispute that had arisen between them, in any court other than the London
Court of International Arbitration which was the contractually agreed forum. The Court held
that anti-suit injunctions constitute an infringement of the jurisdiction of Germany and thus of
its sovereignty. The Court emphasised that the fact, that the anti-suit injunction was not
directly addressed to the German state or to German courts but to a party (actual or potential)
to German proceedings, was immaterial. A party’s compliance with such an injunction is
likely to constitute a direct interference with the work of the German court. Moreover, the
principle of free access to the German courts is an expression of state sovereignty and must be
safeguarded.

In the very recent case of Phillip Alexander Securities and Futures Limited v. Bamberger and
others6 German courts have again regarded English anti-suit injunctions as an infringement of
their sovereignty and have refused to enforce them. Moreover, it is to be noted that in the
subsequent English proceedings the Court of Appeal, although not called upon to decide
whether the German judgments resulting from that refusal should be recognised or be
enforced, did approve the opinion of the English trial judge in the case when he had said: “It

3
Civ. Bruzelles, 18 déc. 1989, R.W. 1990-1991, p.676.
4
24 February 1998; Numéro 10047.
5
Case 3 VA 11/95; [1997] I.L.Pr. 73.
6
[1997] I.L.Pr. 73.
 4

would seem to me prima facie that if someone proceeds in breach of, and with notice, an
injunction granted by the English court to obtain judgments abroad, those judgments should
not, as a matter of public policy, be recognised in the United Kingdom”.7 In other words the
party against whom an injunction has been granted by an English court and who nevertheless
institutes, or proceeds with, the relevant action abroad, puts himself in contempt of the
English court and therefore cannot as a matter of public policy be allowed to take advantage
in England of the result of his contemptuous behaviour.

I will return later to this and another matter raised in the Phillip Alexander Securities and
Futures case. But first I would like to say something about the circumstances in which resort
to anti-suit injunctions is in fact had in some important Common Law countries. The
countries which I have chosen are England, Canada and the United States of America.

First, England. It is, of course, a pre-condition for the granting of an anti-suit injunction that
the English court has in personam jurisdiction over the party against whom it is to be
directed. In England this pre-condition will be most easily satisfied if, in compliance with the
historic Common Law rule, that party is present and can be personally served with the writ in
England. In addition personal service abroad is permissible in a range of situations listed
under Order 11, rule 1(1), of the Rules of the Supreme Court. It is, however, to be
remembered that jurisdiction under Ord. 11, rule 1(1), can only be taken with leave of the
court, and “No such leave shall be granted unless it shall be made sufficiently to appear to the
Court that the case is a proper one for service out of the jurisdiction under this Order”.8
Moreover, if the case falls within the scope of the Brussels or the Lugano Convention,
jurisdiction to entertain that action will depend upon compliance with the provisions of the
relevant Convention.

On the assumption that an English court has jurisdiction to grant an anti-suit injunction, when
will that jurisdiction be exercised? It would be unrealistic to suppose that a precise answer to
this question emerges from the case law. This is not surprising. We are concerned here with
the flexibility of equitable relief; with the influence and impact of notions of international
comity; with to some extent the principles underlying forum non conveniens; as we shall see

7
Ibid. 115.
8
R.S.C. Order 11, rule 4(2).
 5

with the concept of “vexations or oppressive” conduct; and, of course, with achieving
“justice”.

Dicey and Morris9, citing the House of Lords case of Castanho v. Brown and Root10 states:
“The underlying principle is that jurisdiction is exercised ‘when it is appropriate to avoid
injustice’, or, as it was once put, when the foreign proceedings are ‘contrary to equity and
good conscience’”.11 The authors continue: “Although it is possible to identify certain
categories of cases in which the jurisdiction has been exercised ‘the width and flexibility of
equity are not to be undermined by categorisation’”.12 Some examples of English courts
granting anti-suit injunctions have related to foreign proceedings in breach of a contract not to
sue;13 or in breach of a contract to be bound by the result of English proceedings;14 or in
breach of a contract to sue only in England.15 A court will sometimes restrain foreign
proceedings in order to protect its own “due process”.16 Again, English courts have more than
once granted injunctive relief restraining foreign proceedings which it has regarded as
“oppressive or vexatious”.17 An English court will even, although very rarely, enjoin a party
from carrying on matrimonial proceedings in a foreign court. An illustration of this is
provided by the case of Hermain v. Hermain18 in which in 1988 an injunction was granted by
the English Court of Appeal in respect of French divorce proceedings.

An important matter is the relationship between the test governing the availability of anti-suit
injunctions and that governing the operation of the doctrine of forum non conveniens. In 1981
in Castanho v. Brown and Root Lord Scarman, with whom all the other members of the
House of Lords agreed, had said “The principle is the same whether the remedy sought is a
stay of English proceedings or a restraint upon foreign proceedings”.19 It was therefore held
that an injunction could be granted to restrain foreign proceedings in the same circumstances
as those in which a stay of English proceedings would be ordered on the ground of forum non

9
Dicey and Morris: The Conflict of Laws (12th ed.) pp.408-9.
10
[1981] A.C. 557, 573.
11
Carron Iron Co. v. Maclaren (1885) 5 H.L.C.416, 439.
12
op.cit. 409, again citing Castanho v. Brown and Root [1981] A.C.557, 573.
13
Ellerman Lines Ltd. v. Read [1928] 2 K.B. 144.
14
The Tropaioforos (No.2) [1962] 1 Lloyd’s Rep. 410.
15
The Lisboa [1980] 2 Lloyd’s Rep. 546.
16
South Carolina Insurane Co. v. Assurantie N.V. [1987] A.C.24.
17
See, e.g., South Carolina Insurance Co. case [1987] A.C.24. and Société Nationale Industrielle Aerospatiale
v. Lee Kui Jak [1987] A.C.871.
18
[1988] 2 F.L.R. 388.
19
[1981] A.C.557, 574.
 6

conveniens. However, six years later in Société Nationale Industrielle Aerospatiale v. Lee Kui
Jak20 the Privy Council held that it was no longer right to treat the principles applicable in
injunction cases as equivalent to those applicable in forum non conveniens cases as developed
by the House of Lords six months earlier in Spiliada Maritime Corp. v. Consulex Ltd.21 A
party should not be enjoined from proceeding in a foreign court simply because England was
the natural forum. The Privy Council (hearing an appeal from the Court of Appeal of Brunei
Darussalam) held that, where a remedy was available in England and in the foreign court, an
injunction to restrain the plaintiff from proceeding in the foreign court would generally only
be granted if pursuit of the foreign proceedings would be “vexatious or oppressive”. Lord
Goff, delivering the advice of the Privy Council, said: “In the opinion of their Lordships, in a
case such as the present where a remedy for a particular wrong is available both in the English
(or, as here, in the Brunei) court and in a foreign court, the English or Brunei court will,
generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court
if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the
English or Brunei court must conclude that it provides the natural forum for the trial of the
action; and further, since the court is concerned with the ends of justice, that account must be
taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign
proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the court will
not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign
forum of which it would be unjust to deprive him”.22 In the Société Aerospatiale case the
action had arisen out of a helicopter accident in Brunei in which a wealthy citizen of Brunei
had been killed. The helicopter, owned by an English company and serviced by a Malaysian
company, had been manufactured by a French company, Société Aerospatiale. The widow of
the deceased, Lee Kui Jak, commenced proceedings against Société Aerospatiale in Brunei
and in Texas. The jurisdiction of the Texas court was based upon the fact that the defendant
did business there by selling its products to a subsidiary. The plaintiff wanted to sue in Texas
because of its more favourable product liability laws and damage quantification laws. The
defendant sought a stay of the Texas action, but this was refused by the Texas court. The
defendant then brought an anti-suit action in Brunei seeking to restrain the plaintiff from
proceeding in Texas. The Privy Council had no difficulty in holding that Brunei was the
natural forum because the action arose out of the death in Brunei of a citizen of Brunei and

20
[1987] A.C.871.
21
[1987] A.C.460.
22
[1987] A.C.871, 896.
 7

the law of Brunei fell to be applied. Moreover, the situation was totally unconnected with
Texas. It was perhaps less obvious that to allow the Texas action to continue would be
vexatious or oppressive. In an earlier case, The Atlantic Star,23 the House of Lords had stated
that oppressive means morally delinquent and that vexatious in this context connotes
irresponsibility. It would seem, however, that the Privy Council in the Société Aerospatiale
case perhaps adopted a rather more flexible interpretation. There Société Aerospatiale had
contended that it was seeking a contribution from the company responsible for the
maintenance of the helicopter, and that it was uncertain whether it could base such a claim
upon a Texas judgment. It might, therefore, have to bring a fresh action against the
maintenance company in Brunei in order to establish liability. The Privy Council found that
this would be vexatious and oppressive.

Although technically a Brunei, rather than an English, case the advice given by the Privy
Council in the Société Aerospatiale case is now accepted as representing current English law.
However, looking at the actual decision one is perhaps tempted to suspect that, although the
need for demonstration of vexatiousness or oppression will prove to be a salutary restriction
upon the availability of anti-suit relief in the great majority of cases, it may have to be
flexibly applied in a case in which the foreign forum is (as in the instant case) totally
unconnected with the fact situation.

It is not necessary for a plaintiff, who seeks an injunction, to seek relief in an English court on
the substance of the dispute. Applicants for anti-suit injunctions are seeking not to assert any
independent cause of action, but simply protection from suit in a foreign court. Sometimes,
but only very exceptionally, an injunction may be granted even if, notwithstanding the
jurisdictional competence of the English court, the would-be plaintiff in the foreign
proceedings would fail on the merits in English proceedings. This possibility was considered
by the House of Lords in British Airways Board v. Laker Airways Ltd.24 and by the Court of
Appeal in Midland Bank PLC v. Laker Airways Ltd.25. Both of these cases arose out of anti-
trust proceedings brought, or threatened to be brought, in the United States by the English
liquidator of Laker Airways Ltd., in connection with an alleged conspiracy to drive Laker
Airways Ltd. out of business, against several defendants including certain British airlines and

23
[1974] A.C.436.
24
[1985] A.C.58.
25
[1986] Q.B.689.
 8

banks. In the former case the House of Lords intimated that an anti-suit injunction could be
granted to restrain foreign proceedings even if the plaintiff in those proceedings would have
no remedy in England, but then only if the bringing of the foreign action would in the
circumstances be so unconscionable that it could be regarded as the infringement of an
equitable right. An injunction was refused in the instant case because the British airlines by
carrying on business in the United States had in effect accepted that they were subject to
United States law, including United States anti-trust law. Subsequently this result was
distinguished by the Court of Appeal in Midland Bank PLC v. Laker Airways Ltd. There it
was held that two British banks were entitled to an injunction restraining the liquidator from
joining them in the United States proceedings. It was alleged that they had joined a
conspiracy to deprive Laker Airways Ltd., to whom they were bankers, of the benefits of a
financial rescue package. The Court of Appeal held that for an English plaintiff to sue them in
the United States, on the basis of the extra-territorial application of United States anti-trust
law to activities in England and intended to be governed by British law, would be
unconscionable and unjust.

It is always to be remembered that, an injunction being a form of equitable relief, the exercise
of judicial discretion may limit its availability. In Toepfer v. Molino Boschi26 one of the
reasons why an injunction was refused was the undue delay on the part of the plaintiff in
seeking it. In the course of his judgment Mance J., sitting in the Commercial Court, said: “...
delay is an extremely relevant factor in the exercise of any discretion ...” to grant an
injunction.27 His Lordship concluded: “Viewing the matter overall, I have no hesitation in
concluding that this is not a case where this Court should at this very late stage contemplate
issuing any injunction to prevent Molino Boschi [the defendant] pursuing and seeking the
ruling of the Italian Court either on the issues of procedure which have been ventilated before
it exhaustively with oral evidence or on any substantive issues which do arise thereafter”. 28

29
The very recent decision of the Court of Appeal in Airbus Industrie GIE v. Patel would
appear to extend in one respect the availability of anti-suit injunctions. In 1994 an India
Airlines aircraft crashed on landing in Bangalore in India. Some actions were begun in Texas
against Airbus Industrie GIE, the manufacturers of the aircraft. The plaintiffs in one of these

26
[1996] 1 Lloyd’s Rep.510.
27
Ibid.515.
28
Ibid.518.
29
[1997] I.L.Pr.230; The Times 12 August 1996. Leave has been given to appeal to the House of Lords.
 9

actions were English residents who had been involved in the crash. The Texas court held that
the defendants were immune from suit in the United States. Thereafter a Bangalore court held
that the English residents could not sue in any forum other than Bangalore. They then sought
to appeal in Texas. It was this Texas appeal that in English proceedings Airbus Industrie GIE
sought to prevent by way of an anti-suit injunction. The defendants in these proceedings were
English residents subject to English jurisdiction in personam. Bangalore, not Texas, was the
natural forum. The Court of Appeal held that to proceed in Texas would be oppressive
because Airbus would fail in any contribution proceedings in Bangalore if it lost in Texas and,
additionally, because Texas law would have been applied although Texas was totally
unconnected with the alleged wrongdoing. What is particularly noteworthy is that here an
English court granted an injunction to restrain the claimants from continuing with their
foreign proceedings notwithstanding that the grant was being made, not for the purpose of
protecting any proceedings instituted in England, but for the purpose of protecting
proceedings in India. The availability of the English courts for the conduct of the substantive
proceedings was held not to be an essential pre-condition for the exercise of the court’s
jurisdiction to grant an anti-suit injunction. In the instant case it was held to be enough for the
grant of an injunction that to permit the claimants to proceed with their action in Texas - in
any event an inappropriate forum for the case - would be unconscionable and oppressive and
would be unfair to the manufacturers.

I now turn to the position in Canada. There, as in England, a pre-condition for the granting of
an anti-suit injunction is that the court has in personam jurisdiction over the party against
whom it is to be directed.

The Supreme Court in the case of Amchem Products Inc. v. British Columbia Compensation
Board30 has, however, recently reviewed the position relating to the availability of anti-suit
injunctions in jurisdictionally competent courts. In the Amchem case the Workers’
Compensation Board of British Columbia brought a subrogated claim in Texas against
manufacturers and distributors of asbestos. The claim was to recover payments which the
Board had made to British Columbian employees for asbestos related disabilities which had
arisen from their employment in British Columbia. The Board also sought, on behalf of the
employees, general damages on a scale normally operative in Texas courts. The defendants,
having failed to have the action stayed in Texas largely because Texas courts do not apply the
 10

doctrine of forum non conveniens, then sought an anti-suit injunction in Canada to restrain the
Board from proceeding in Texas. They succeeded at first instance and in the British Columbia
Court of Appeal but failed in the Supreme Court of Canada.

The Supreme Court seems to have laid down that generally the availability of an anti-suit
injunction should not even be considered unless a suit has actually been commenced in the
foreign jurisdiction and the defendant has applied unsuccessfully for a stay in that foreign
court. Sopinka J., delivering the judgment of the Supreme Court, said of anti-suit injunctions:
“In order to resort to this special remedy consonant with the principles of comity, it is
preferable that the decision of the foreign court not be pre-empted until a proceeding has been
launched in that court and the applicant for an injunction in the domestic court has sought
from the foreign court a stay or other termination of the foreign proceedings and failed”.31
Then, but “preferably” only then, may the defendant even apply to a Canadian court for an
anti-suit injunction. The Supreme Court further held that a Canadian court should only grant
such an injunction if (1) the foreign court was exercising jurisdiction on a basis inconsistent
with Canadian principles of forum non conveniens and (2) injustice32 would result if the
foreign proceedings were allowed to continue.

If strictly applied, the Amchem doctrine is clearly likely to limit the availability of anti-suit
injunctions in Canada in several ways.

First, any preliminary requirement, that an application for an injunction will not even be
considered unless a suit is already pending in the foreign court and unless that foreign court
has already refused to stay its proceedings, could give rise to unnecessary delay and expense.
Of course, if an injunction would restrain a foreigner from bringing an action in his place of
residence, the case for granting an injunction may well be very weak; but this can hardly
justify a general rule under which, for example, a Canadian court would be prevented from
even considering entertaining an application for an anti-suit injunction aimed at a Canadian
resident simply because, even though an inappropriate foreign court would be very likely to
assume jurisdiction and decline to stay proceedings, it has not yet had an opportunity to do so.

30
[1993] 1 S.C.R. 897
31
Ibid. 931.
32
Sopinka J. preferred this test to be in terms of “injustice” rather than in terms of it being “vexatious or
oppressive” (ibid. 932-3).
 11

Would it offend comity if in such circumstances a Canadian court were to order the Canadian
resident not to commence vexatious or oppressive proceedings in the foreign court?

Again, the requirement that no injunction can be granted unless the foreign court assumed
jurisdiction on a basis inconsistent with Canadian principles of forum non conveniens could
be unduly restrictive. A Canadian court, even if it concludes that it would itself clearly be a
natural forum, will not be allowed to grant an injunction unless it is also satisfied that the
basis of the foreign court’s refusal to stay was inconsistent with Canadian principles of forum
non conveniens. In the Amchem case itself the Texas court did not rely upon forum non
conveniens. The Supreme Court of Canada nevertheless did conclude that its exercise of
jurisdiction was not inconsistent with the principles of that doctrine as applied in Canada.

In short it is disturbing to note that the second arm of the Amchem test, namely that injustice
would result if the foreign proceedings were allowed to continue, although basically laudable
in itself, will not be operative unless there has been compliance, both with the precondition
for even consideration of the grant of an injunction, and with the first arm of the test.

The Amchem case itself involved injuries to Canadian residents which had arisen in Canada.
The motive for bringing the action in Texas would appear, at least in part, to have been the
avoidance of Canadian limitations on damages. Was justice to the defendants sacrificed on the
tawdry altar of pseudo-comity?

Let us now consider the position in the United States of America. In assessing United States
authorities concerned with the availability of anti-suit injunctions one must, of course, always
remember that many of them arose in an inter-State rather than an international context. In
such cases considerations of international comity are, as such, of little, if any, direct
relevance. However, the preservation of the cohesion and structure of the Union is important.
At the same time it is generally accepted that the constitutional mandate that “full faith and
credit”33 be accorded to sister-State judgments is usually not operative so far as anti-suit
injunctions are concerned. On the other hand United States Federal Courts have sometimes
had to limit the grant of anti-suit injunctions directed at parallel State Court proceedings.

33
Constitution of the United States, Article IV, Section 1.
 12

As has recently been pointed out by Julian Wilson34 United States Circuit Courts would
appear to be divided on the approach to the problem of the proper standard to apply when
deciding (assuming, of course, that the court has jurisdiction) whether to grant an anti-suit
injunction. The District of Columbia, the 2nd Circuit and 6th Circuit adopt, in his words a
“restrictive approach which accords primacy to non-interference with the sovereignty of the
foreign court over the inequities of simultaneous parallel proceedings”.35 The 5th, 7th and 9th
Circuits are, on the other hand, again in his words, “more liberal and incline towards an
approach which grants the remedy to avoid the hardship which allowing simultaneous
prosecution of the same action in a distant foreign forum may otherwise entail”. 36

The former, i.e. the “stricter”, standard seems to require that the court should only grant an
anti-suit injunction when this is necessary in order to protect its own jurisdiction and to
prevent the evasion of its own public policies. The “laxer” standard seems to be closer to the
English doctrine under which an injunction may be available if the foreign proceedings are
“vexatious or oppressive” and would cause inequitable hardship.

An “old” (1958) case demonstrating the length to which anti-suit injunction availability has
sometimes gone in the United States is to be found in the decision of the Supreme Court of
Illinois in James v. Grand Trunk Western Railroad Co.37 That case involved a Michigan
injunction and an Illinois counter-injunction. The proceedings arose out of a fatal accident in
Michigan. The widow of the deceased brought an action in Illinois under a Michigan
wrongful death statute. The defendant railway company obtained an injunction in Michigan
restraining the widow from proceeding with the Illinois action. The widow then sought an
injunction in Illinois to restrain the enforcement of the Michigan injunction. The Supreme
Court of Illinois, granting this counter-injunction, held: “We are not only free to disregard
such out-of-State injunctions, and to adjudicate the merits of the pending action, but we can
protect our jurisdiction from such usurpation by the issuance of a counter-injunction
restraining the enforcement of the out-of-State injunction...”. However, in the course of a
dissenting judgment Justice Schaefer observed: “The place to stop this unseemly kind of

34
See the Editorial in the International Legislation News for January 1997.
35
Ibid. p.2. See Laker Airways v. Sabena 731 F. 2d. 909 (D.C. Circ.1984); China Trade v. M.V. Choon Young
837 F. 2d. 33 (2d. Cir.1987) and Gau Shan v. Bankers Trust 956 F. 2d. 1349 (6th Circ.1992).
36
Ibid. p.2. See Re Unterwasser 427 F. 2d. 888 (5th Circ.1970); Allendale Mutual Insurance Co. v. Bull Data
10 F. 3d. 425 (7th Circ.1993); and Seattle Totems Hockey Club Inc. v. National Hockey League 652 F. 2d.852
(9th Circ.1981).
37
4 I11. 2d. 356; 152 N.E. 2d. 858; Cert. den. 358 U.S. 915 (1958).
 13

judicial disorder is where it begins”. He went on to point out that Illinois had “no connection
whatever with the occurrences out of which the administrator’s [the widow’s] claim arose”.
The “judicial disorder” began, of course, in the failure of the Illinois court in the initial
proceedings to decline to exercise jurisdiction on the ground of forum non conveniens. This
failure occurred 40 years ago, i.e., although about a decade after first acceptance of the
doctrine of forum non conveniens by the Supreme Court of the United States in Gulf Oil
Corp. v. Gilbert38, at a time when its nature and scope had still not been fully developed. So
perhaps today the sequence of “judicial disorder” would have been avoided.

In the recent case of Kaepa v. Achilles 39 the Court of Appeal for the 5th Circuit has held that
the trial judge had correctly exercised his discretion in granting an anti-suit injunction
restraining proceedings in Japan which were the same as, or were very similar to, proceedings
in Texas. The Japanese litigants had consented to the jurisdiction of the Texas court and had
actually appeared in the Texas action giving discovery there before bringing the suit in Japan.
The majority of the Court observed: “We decline to require a District Court to genuflect
before a vague and omnipotent notion of comity every time it must decide whether to enjoin a
foreign action”. The minority took a much more restrictive approach. It took the view that:
“amicable relations among sovereign nations and their judicial systems depend upon our
recognition as federal courts, that we share the international arena with co-equal judicial
bodies, and that we therefore act to deprive a foreign court of jurisdiction only in the most
extreme circumstances”.

The difference between the reasoning and conclusion of the majority and the reasoning and
conclusion of the minority in the Kaepa case reflects a divergence of view as to the primary
purpose of transnational (and trans-State and trans-Province) litigation. Is the primary purpose
to do justice between the parties, or is it to further good relations between nations and
between the constituent elements of a federation?

Before offering any conclusions and suggestions about anti-suit injunctions generally, I would
like now to say a brief word about the intra-European Union position. Should there be special
controls upon their use by a court in a member State in relation to proceedings in another
Member State? Should any such controls similarly apply to courts sitting in a country which

38
(1947) 330 U.S. 501.
39
76 F. 3rd. 624 (5th Circ. 1996).
 14

is party to the Lugano Convention? Control at the existence of jurisdiction stage is, of course,
already operative. However, does the special relationship existing between Member States
additionally require that the actual exercise of jurisdiction to grant an anti-suit injunction be
limited if the suit involved is a suit in a court of another Member State? If one were to follow
the example of the United States of America practice in inter-State cases the answer to this
question would appear to be in the negative. Moreover, the English Court of Appeal in the
case of Continental Bank N.A. v. Aeakus Cia Naviera S.A.40 appears to have held that a court
may in some circumstances grant an anti-suit injunction relating to proceedings in another
Member State although those proceedings fall within the scope of the Convention. I have
already referred to the very recent English case of Phillip Alexander Securities and Futures
Ltd. v. Bamberger and others41 in another context. But I would now like to draw attention to
the concluding paragraph in the judgment of the English Court of Appeal delivered by
Leggatt L.J.. In the opening words of that paragraph his Lordship said: “The practice of the
courts in England to grant injunctions to restrain a defendant from prosecuting proceedings in
another country may require reconsideration in the light of the facts of this case”.42 He then
drew attention to the problems of enforceability. He went on to conclude the judgment as
follows: “In cases concerning the European Union what would best meet the predicament is a
Directive defining the extent of the recognition which orders of the courts of each Member
State are entitled to receive from the courts of other Member State”.43 In other words his
Lordship is not advocating special limitation on the granting of anti-suit injunctions in the
European Union context, but rather regulation of the recognition of such injunctions in that
context. However, of course, the knowledge that an injunction would not be entitled to
recognition or enforcement could in practice often inhibit a court in deciding whether to grant
it.

I will now turn to more general matters. Why have anti-suit injunctions found favour in
Common Law countries? Indeed why could they find favour in any country? There is no
simple, clear-cut, all-embracing answer to this question. However, one thing is obvious.
Resort to anti-suit injunctions has been, and still is, a response to the practice of courts in
some countries of claiming, and exercising, unreasonably wide jurisdiction. It cannot be a
coincidence that in many Common Law countries there has been, over now several decades, a

40
[1994] 1 W.L.R. 588.
41
[1997] I.L.Pr. 73.
42
Ibid. 117.
43
Ibid. 117.
 15

marked tendency to widen, and to render more flexible, the ground upon which jurisdiction
can be taken. To some extent the effect of this has been negatived by a willingness to decline
to exercise exorbitant jurisdiction on the ground of forum non conveniens. But this latter
doctrine is still not accepted in some countries, and resort to it is still pretty limited in many
other countries. In these circumstances it seems to be clear that, as a first step towards
reducing the number of situations in which the granting of an anti-suit injunction could be
appropriate, the rules governing both the assumption of, and the exercise of, jurisdiction
should be reviewed, rationalised, and co-ordinated.

However, even if this were to be achieved, i.e., even if a set of rational and co-ordinated rules
limiting the assumption and the exercise of jurisdiction in personam generally were to be
agreed and applied internationally, a further question might arise, namely as to the
appropriateness of their application to the specific, and some would say idiosyncratic, case of
an application for an anti-suit injunction. For example, should the fact, that a forum has
general in personam jurisdiction over the party against whom the injunction would be
directed, always be a sufficient basis for jurisdiction to grant such an injunction? Or given the
nature of anti-suit relief, should there be special restrictions upon the existence of jurisdiction
to grant such relief? I incline to think not. The circumstances in which anti-suit relief is
sought may vary a great deal. Although basic jurisdictional competence must be an essential
requirement, accommodation of the intrinsic peculiarities of anti-suit relief, and the diversity
of the circumstances in which it may be sought, can best be achieved by a flexible technique.
There is clearly room for the operation of forum non conveniens in this area. There may well
be cases in which, although jurisdictionally competent, the court in which anti-suit injunction
is being sought is not the most appropriate forum for the grant of such relief.

I turn now to consider the criteria which ought to be applied by a jurisdictionally competent
and appropriate forum when deciding whether or not to grant an application for an anti-suit
injunction for the purpose of preventing the institution or continuance of foreign proceedings.

I start by repeating the words of Lord Goff, delivering the opinion of the Privy Council in the
Société Aerospatiale case, to the effect that the forum will “generally speaking, only restrain
the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious
or oppressive. This pre-supposes that, as a general rule, the .... court must conclude that it
provides the natural forum for the trial of the action; and further, since the court is concerned
 16

with the ends of justice, that account must be taken not only of injustice to the defendant if the
plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he
is not allowed to do so. So the court will not grant an injunction if, by doing so, it will deprive
the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him”.44

It is to be noted that no reference is made here to “comity” which has sometimes been
invoked by those who regard the grant of an anti-suit injunction as being unwarranted. The
primary purpose of litigation is seen by Lord Goff as being the doing of justice between the
parties. In any event if comity is to operate it should be mutually operative. The assumption
and exercise of jurisdiction by the foreign court has itself been inconsistent with
considerations of comity in those cases in which anti-suit relief is warranted.

Secondly, it is to be noted that no mention is made of a need to protect the “due process” of
proceedings in the forum being, as such, a factor to be taken into account. This contrasts with
earlier dicta to the contrary; but it is, of course, obviously consistent with the holding in
Airbus Industrie GIE v. Patel where there were no separate proceedings in the forum to be
protected. It is the interests of the parties (to the foreign proceedings), not the interests of the
forum in which relief is being sought, that is important.

A crucial phrase in Lord Goff’s formulation is, of course, “vexatious or oppressive”. Note that
it is not “vexatious and oppressive”. A vexatious action is defined in the Oxford Dictionary as
being one “instituted without sufficient grounds for winning purely to cause trouble or
annoyance to the defendant”. The definition of “oppressive” is more varied but includes the
“unjust” exercise of power. Few would argue that litigation having either (still less both) of
these characteristics should not be discouraged. In the view of Common Lawyers in an
appropriate case it is seemly that an attempt be made to achieve this by way of anti-suit
injunction. But should the grant of such relief ever be permissible in the absence of
vexatiousness or oppression? Lord Goff was cautious: but he laid down that “generally
speaking” it should not. Even if this means that in practice the availability of anti-suit
injunctions will be confined to cases of vexatiousness or oppression it is possible that
advantage may nevertheless sometimes be taken of the flexibility inherent in the concept of
oppression.

44
[1987] A.C.871, 896.
 17

Should there be any additional limitations upon the power of a jurisdictionally competent and
appropriate forum when it has been shown that institution or continuance of foreign
proceedings would clearly be vexatious and/or oppressive? The Supreme Court of Canada
answered this question in the affirmative in the Amchem case, when it indicated that the
availability of an anti-suit injunction should not be even considered unless a suit has actually
been commenced in the foreign court and the defendant has already applied unsuccessfully
for a stay in that foreign court. Moreover, the Supreme Court held that even then anti-suit
relief could only be available if it is shown that the foreign court was exercising jurisdiction
on a basis inconsistent with Canadian principles of forum non conveniens. These additional
requirements are obviously likely to benefit the plaintiff in the foreign process, but it is
difficult to see how they promote justice which, as Lord Goff emphasised, involves both
parties. Indeed, as in the simple hypothetical example that I tried to give earlier, they could
sometimes operate unfairly against the defendant in foreign proceedings.

I now turn to address what is often potentially, and sometimes actually, a major flaw in the
anti-suit injunction procedure. This, of course, concerns its effectiveness. At the time when an
injunction is being sought there may be serious doubts as to whether, if granted, it would be
effective. Moreover, whether or not such doubts existed at that time, it may in fact turn out to
be ineffective, both the party against whom it was granted, and the foreign court, being able
simply to disregard it. As I mentioned when introducing the concept, an injunction is
classified in Common Law countries as a form of what is designated equitable relief. There is
an historic dogma in these countries that “Equity does nothing in vain”. Compliance with that
dogma would mean that in many cases, in which an anti-suit injunction would otherwise be
available, relief would be denied. It is true that in this area courts have not in fact always paid
scrupulous regard to the dogma; but the underlying problem has not gone away. Indeed, it has
been specifically considered very recently by Leggatt L.J. when delivering the judgment of
the English Court of Appeal in the Phillip Alexander Securities Ltd.45 case which I have
already mentioned. There his Lordship said: “The conventional view is that such an
injunction only operates in personam with the consequence that the English courts do not, and
never have, regarded themselves as interfering with the exercise by the foreign court of its
jurisdiction. In the cases where the defendant lives or has assets of substance in England that
view may have some reality, for there is reason to think that the injunction may be enforced
so as to prevent proceedings taken in breach of it from reaching the foreign court. But in cases
 18

in which the defendant does not live in England and does not have assets here the injunction
is unlikely to be enforceable except by the foreign court recognising and giving effect to the
injunction or, where it refuses to do so, by this court refusing to recognise the order of the
foreign court made without such recognition. In the present case the German courts regarded
the injunctions as an infringement of their sovereignty and refused to permit them to be
served in Germany. In addition they proceeded to give judgments on the merits”. 46

The response to all this can, in the present circumstances, only be that the fact that a form of
relief will not be effective in even a significant number of cases is not a reason for rejecting
its use in those cases in which it is likely to be effective. Moreover, the fact that in the
circumstances of a particular case an injunction would be unlikely to be effective, may itself
well be a circumstance to be taken into account by the court when deciding whether to grant
that injunction. The point may be reached at which, even in this area, equity would do nothing
that would be palpably “in vain”.

So much for the possible response to Leggatt L.J. in present circumstances: but how should
these circumstances themselves be changed? Let us remember those words of Justice
Schaefer, uttered in the Supreme Court of Illinois now some 40 years ago, when dissenting
from the majority decision to grant a counter-injunction: “The place to stop this unseemly
kind of judicial disorder is where it begins”. Where it “began” was in the failure of the Illinois
court in the initial proceedings to decline to exercise jurisdiction to entertain a claim which
was almost totally unconnected with Illinois. Focus should be upon the cause of a malfunction
not upon its symptoms or effects. I can only repeat that what is called for is the creation or
evolution of a rational and universally operative set of rules governing the assumption of in
personam jurisdiction, supplemented by universal acceptance of the doctrine of forum non
conveniens. The number of occasions, upon which the need or temptation to resort to granting
an anti-suit injunction would arise, would then be greatly reduced. In the exceptional situation
in which the need for such relief did nevertheless arise a court should only grant the
injunction if (1) the court is clearly jurisdictionally competent; (2) exercise of that jurisdiction
would accord with the doctrine of forum non conveniens; (3) as a general rule (that is to say
apart from very exceptional cases such as Airbus Industrie GIE v. Patel) the court would
itself be a natural forum for the trial of the substantive issues; (4) the court in granting the

45
[1997] I.L.Pr. 73.
46
Ibid. 117.
 19

injunction adheres strictly to the criteria set out by Lord Goff in the Société Aerospatiale case,
and never allows itself to forget that the ultimate purpose of litigation is to do justice between
the parties.

To further embellish this laudable pattern there should be international agreement, perhaps by
way of a convention, defining the extent of the recognition to which an anti-suit injunction
(by then, of course, a rare phenomenon) would be entitled.