Increase in transport and communication services across the globe has led to rapid growth of trade and commerce between nations. The rise in international commercial transactions has led to a significant rise in disputes. As a result, there is a need for an effective and unified dispute resolution system which can sufficiently settle disagreements/issues among parties in dispute and which has to be arrived at keeping in mind the differences in laws of every nation.
Litigation, nowadays, is becoming progressively international in nature. More and more often parties choose arbitration as an alternative dispute resolution method especially when it comes to international commercial disputes. Consequently, it has become increasingly frequent in international disputes for a recalcitrant party to attempt to disrupt the proceedings by bringing the dispute covered by the agreement before national courts (ordinarily those of that party’s own State) and seeking an “anti-suit injunction” from those courts.
Anti-suit injunctions are court orders whereby the court restrains a party from commencing or continuing a suit in a court. Anti-suit injunctions are national court orders used especially in common law countries, in order to protect the jurisdiction of the arbitral tribunal. An anti-suit injunction is rendered against a party with the intention to either prevent that party from commencing an action in another forum or forcing that party to discontinue such an action if already commenced. If the party disregards the anti-suit injunction and continues with the foreign action, it will face sanctions in the enjoining forum for example, a contempt of Court order may be issued by the domestic Court against that party.
Anti-suit injunctions originated in England and evolved from a mechanism intended to restrain proceedings in another domestic Court, to an effective tool capable of restraining the pursuit of litigation overseas. The origin of anti-suit injunctions can be traced back to the jurisdictional contretemps between the Common Law Courts and the Ecclesiastical and Admiralty Courts. The Common Law Courts availed themselves of what was known as a “writ of prohibition”, against the pursuit of litigation before the Ecclesiastical Courts and the Admiralty Courts. Anti-suit injunction eventually became an effective means by which the Court of Chancery sought to restrain the pursuit of proceedings before the Common Law Courts, the outcome of which, was anticipated to be incompatible with the principles of equity.
The question of whether the Court of Chancery had the power to issue anti-suit injunctions to restrain litigants from pursuing foreign litigation first arose in the seventeenth century in Love v Baker. Contrary to the Bar’s opinion, Lord Claredon LC warned that the granting of such injunction would be a “dangerous case” and opined that it is perhaps safest to reject the application for the injunction in restraint of foreign proceedings in Livorno. Lord Claredon’s conservative concerns were, however, short-lived, and based on Lord Portland’s opinion it was agreed that the Court had the power to issue an anti-suit injunction to restrain proceedings in Holland. Although, the injunction was eventually shot down on procedural grounds, this case marked the first step towards the permissibility of anti-suit injunctions in restraint of foreign proceedings. Given that the Court had already ruled on the power to issue such an injunction, in the subsequent case of Wharton v May, an anti-suit injunction was successfully granted to restrain proceedings in Ireland.
Conditions and Procedure for Grant
The quintessential pre-condition for granting an injunction is that Courts have in personam jurisdiction over the injunction defendant. Antisuit injunction is necessary to prevent an irreparable miscarriage of justice. Generally, anti-suit injunction is granted under the following circumstances:
i .When principle of forum non conveniens (forum not agreeing) is applied;
ii. When the first Court is more convenient to the parties;
iii. When a motion of forum non conveniens has been made in the second jurisdiction and has subsequently failed; and
iv. When a complainant is not unduly disadvantaged by proceeding in the first jurisdiction. In Forum Ins. Co.
v. BristolMyers Squibb Co., it was held that an anti-suit injunction is appropriate in four instances:
i .to address a threat to the Court’s jurisdiction;
ii. to prevent the evasion of important public policy;
iii. to prevent a multiplicity of suits; or
iv. to protect a party from vexatious or harassing litigation. Although the test for issuance of an anti-suit injunction to a person amenable to the jurisdiction of the Court in person has been varying, the underlying principle is that jurisdiction is exercised over the defendant “where it is appropriate to avoid injustice” or where the foreign proceedings are “contrary to equity and good conscience”.
In the context of contractual injunctions, the first consideration which the Court may take into account in deciding whether there are “strong reasons” against the grant of an injunction, is the nature of the choice of Court clause. If it appears that the injunction defendant did not personally consent to the contractual clause, then this factor might suggest against the grant of the injunction. Although, it is unlikely that this consideration alone constitutes a “strong reason” against the grant of an injunction, it may nevertheless be taken into account by the Court in deciding whether to grant an anti-suit injunction or not.
On the other hand, in the absence of a jurisdiction clause, the Court may, in the exercise of its discretion, employ several factors in order to establish which of the two Courts, local or foreign, is the most appropriate forum. These are often referred to as the forum conveniens considerations, and can include considerations, such as, the location of witnesses and other relevant evidence; the connection of the litigants with the foreign forum; the applicable law; the reasons which may have motivated the other party to pursue litigation in the foreign forum; and any significant prejudice which he may have suffered, had he brought proceedings in the other forum. Moreover, any overlapping proceedings in another forum and whether the foreign Court would have adhered to the principle of equality of arms and granted a fair trial to both litigants are also factors which may be taken into account by the Court.
Since anti-suit injunctions are deeply rooted in equity, then the equitable maxim of ‘whoever comes to equity must come with clean hands’ is also applicable. This can be translated as meaning that the conduct of the injunction claimant is also taken into account when adjudicating the discretionary power. Delay by the claimant in initiating proceedings for the anti-suit injunction, as well as voluntary submission to the foreign jurisdiction and inconsistent behaviour, are all factors which the Court is likely to consider, when requested to issue an anti-suit injunction.
Comity considerations may also play an important role in deciding whether or not to grant an injunction. If an injunction is requested to halt proceedings in a foreign forum which is more likely to consider the injunction as an abusive interference with its jurisdiction and sovereignty, then the Court may want to exercise a higher degree of diligence in its decision.
The Indian Practice
The Indian practices on the grant of anti-suit injunctions resembles the practices of the English Courts. It has been held that this doctrine has to be applied with care and caution as it involves the issue of respect for corresponding international forums. The said legal position is abundantly clear in view of the judgment of the Supreme Court in Modi Entertainment Network and Anr. v. W.S.G. Cricket Pte. Ltd., AIR 2003 SC 1177. It was observed in the said judgment that the Courts in India like the Courts in England are Courts of both law and equity and thus the principles governing grant of injunction an equitable relief by the Court would also govern grant of anti-suit injunction, which is a species of injunction. However, the rule of ‘comity of Courts’ requires this power to be exercised sparingly because such an injunction though directed against a person in effect causes interference in exercise of jurisdiction by another Court. In this case the Supreme Court propounded guidelines for granting antisuit injunction, which are as follows –
i. In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects:-
a. the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court;
b. if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
c. the principle of comity – respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained – must be borne in mind.
ii. In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non conveniens.
iii. Where jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or nonexclusive jurisdiction of the Court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the Court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case.
iv. A Court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a Court including a foreign Court, a forum of their choice in regard to the commencement or continuance of proceedings in the Court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the Court of choice because the essence of the jurisdiction of the Court does not exist or because of a vis major or force majeure and the like.
v. Where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the Court of their choice which cannot be treated just an alternative forum.
vi. A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the Court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the Court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that Court cannot per se be treated as vexatious or oppressive nor can the Court be said to be forum non conveniens.
vii. The burden of establishing that the forum of the choice is a forum non conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same. The right to a fair trial, encompasses the right to an effective judicial remedy, which allows the claimant to assert his civil rights. Although it has been accepted that these rights are not absolute, any restriction on such rights must not limit the “access to a Court” to the extent that the very ethos of the right is tainted.
In Re the enforcement of an English anti-suit injunction, it was concluded that the grant of an anti-suit injunction to restrain litigation in a foreign court amounts to an infringement of the right of access to a Court. In the defence of the anti-suit injunction, it has been argued that the right of access to Court does not apply when the injunction is sought to restrain the pursuit of litigation in a foreign Court. In other words, supporters of this line of thought hold that the right of access to a Court only comes in where a claimant is restrained from pursuing litigation before a domestic Court.
Even though the principle of comity has been given regard to by the Apex Court, there have been instances where an anti-suit injunction has been granted against a foreign forum, based on facts and circumstances. This raises the question of whether an anti-suit injunction can be granted by a Court against a domestic/Indian Court of concurrent jurisdiction. In this regard the judgment of the Division Bench of the Delhi High Court in the case of Horlicks Ltd. v. Heinz India (P) Ltd.,(2009) 164 DLT 539 (DB),is relevant wherein the Court held that an anti-suit injunction can only be filed against a Court of a subordinate jurisdiction and not of a concurrent jurisdiction. The relevant portion of the judgement is as follows:
“92. On the conspectus of the aforesaid, we hold as under:
(i) The doctrine of anti-suit injunction though may be applicable both in foreign forums and domestic forums in different countries has no place in India regarding another domestic forum in view of the specific bar created by Section 41(b) of the said Act as interpreted in Cotton Corporation of India Limited v. United Industrial Bank Limited case (supra). It would apply only in case of a foreign forum or in a situation where an injunction is sought against a domestic Court which is subordinate to the one where such an application is made.”
Summarising the principles for grant of an anti-suit injunction, the Supreme Court held, in the case of Dinesh Singh Thakur v. Sonal Thakur, (2018) 17 SCC 12, that such a request deserves to be dismissed/refused when by such refusal no grave injustice would be suffered by the party seeking such injunction. It further held that power should be exercised sparingly, carefully, cautiously and not in a routine manner, as the grant of the injunction is governed by the doctrine of equity.
Anti-suit injunctions are a powerful tool to enforce a decision on jurisdiction. But it goes without saying that the exercise of power by the domestic forum leads to frustration on the side of the foreign forum because of the interference with its jurisdiction. Resultantly, anti-suit injunction is by far one of the most controversial remedies which could be granted by a Court. From the very beginning of its development, the English Courts were aware of its implications and intricacies and as the baggage of critique continued to increase, Courts of Common Law, admittedly limited its availability by increasing the thresholds for its grant but never sought to surrender such tool from their armoury.
Anti-suit injunction is indispensable for private justice and its grant is, therefore, warranted under Common law, even if at the expense of public law considerations. The Indian Courts, following the Common Law trend set by the English Courts, have laid down a set of rules for grant of anti-suit injunctions, which are now more or less established. On the other hand, rules however comprehensive, may not be able to anticipate the plethora of scenarios that may arise which necessitate a degree of judicial discretion. In such cases it would be advisable to for parties entering into commercial transactions, to clearly define the jurisdictions of the Courts and laws applicable, beforehand. Nevertheless, inspite of the need to exercise judicial discretion the Courts would be required to do so in a careful and thought-out manner to meet the ends of justice and satisfy the doctrine of equity and comity.
Ajay Bhargava (Senior Partner), Arvind Kumar Ray (Principal Associate) and Shivank Diddi (Associate) are part of the Dispute Resolution practice of Khaitan & Co, New Delhi.