Anti-Suit Injunctions by English Courts: An Improper Interference in Foreign Judicial Proceedings?

Introduction

A repercussion of cross-border disputes is the emergence of parallel proceedings which often result in duplication and irreconcilable judgments. An anti-suit injunction (ASI) is a powerful tool in the arsenal of English Courts to lay the conflicts arising out of parallel proceedings at rest. An ASI prevents a party from commencing or taking further steps or withdraw foreign proceedings. They serve three considerations — comity, commercial certainty, and access to justice. Countering the averment that English Courts do not take sufficient account of comity considerations and improperly interfere in foreign judicial proceeding, this article argues that ASI are a means to curb the “wrongdoing of the defendant” upholding commercial considerations. By granting an ASI, English Courts cannot be said to interfere with the sovereignty of a foreign State. This article is based on the analysis of (i) the conditions for obtaining an ASI; and (ii) the principle of “State sovereignty” and comity as the cardinal rule for the decisions of English Courts, to conclude that ASI serve commercial interests.

Grounds for granting ASI

Courts of equity have the power to issue ASI when it has personal jurisdiction over the defendant. In essence, an ASI operates over the defendant (not the foreign court) who infringes an equitable right.¹ Even if the English Court grants an ASI, the foreign court is not barred from continuing the proceedings. Though the consequence would be that a judgment of the foreign court (where proceedings continued despite an ASI granted by the English Court) will not be enforceable in England. An ASI is to protect the English jurisdiction but sparingly granted “when the ends of justice require it” to protect the jurisdiction or to prevent the risk of foreign vexatious and oppressive proceedings, respecting comity considerations.² It is pertinent to note that under the Brussels I Regulation, member States (MS) cannot issue ASI in relation to proceedings in another member State. The EU MS follow the rule of lis pendens which was applicable to the English jurisdiction in relation to proceedings in another MS however, the position post-Brexit is different. The community of English legal practitioners view the power to issue ASI as a “welcome move” irrespective of where the parallel proceedings commence or in relation to ongoing proceedings.

Basis of jurisdiction on the respondent: Connection with England

If jurisdiction on the defendant has been assumed based on “service-in” or “outside”, personal jurisdiction over the substance of the dispute is established to issue an ASI.³ This qualifies the primary criteria set out in Airbus Industrie GIE v. Patel mandating that relief in the form of ASI cannot be granted until the jurisdiction on the defendant is established.⁴

The Court cautioned in Deutsche Bank AG v. Highland Crusader Offshore Partners LP⁵ that what was once the ground for stay of English proceedings in favour of a foreign court (vexatious and oppressive: The Atlantic Star⁶) was replaced by Spiliada Maritime Corpn. v. Cansulex Ltd.⁷ in the form of forum non conveniens. But the approach of a less appropriate foreign court (Spiliada forum conveniens is based on more appropriate foreign court) cannot be the ground for an ASI unless it can be satisfied that the conduct of the defendant is vexatious and oppressive. Pertinent to note, a separate requirement of the defendant’s amenability to the jurisdiction has withered away, nonetheless, it is premised on strong factors since the approach of the English Court would be to render enforceable judgments.⁸

Broadly, the English Court can grant an ASI in two circumstances: where a legal or equitable right exists in the form of an exclusive jurisdiction agreement in favour of the foreign court or where the conduct of the defendant instituting proceedings in the foreign court is vexatious or oppressive.

Where an exclusive jurisdiction agreement operates and a party brings a claim before the non-contractual forum, the burden is upon that party to establish “strong reasons” for displacing the right to be sued in an agreed forum.⁹ Furthermore, to restrict such proceedings the English Courts are acting to prevent a violation of comity considerations by the foreign court. In this situation, it is relevant to consider that the right to access of court and the right to access of justice are distinct.¹⁰

Vexatious and oppressive conduct. — In Société Nationale Industrielle Aérospatiale v. Lee Kui Jak,¹¹ it was established that the conduct of the defendant may be vexatious where substantial benefits are being derived in the foreign forum, for illegitimate purposes. Deutsche Bank AG v. Highland Crusader Offshore Partners LP set forth the principle that an alleged oppression through foreign proceedings must involve injustice to the claimant for an ASI to be granted.¹² This establishes that prima facie vexatious or oppressive conduct is not sufficient.¹³ The threshold of proving a vexatious and oppressive conduct or outcome relating to the defendant (claimant in foreign proceedings) is crucial.

Sufficient interest and connection. — Vexation or oppression as defences to comity are premised on a high threshold for the claimant to establish and the court to exercise discretion only where necessary to protect processes, jurisdiction, and judgments of the English Court.¹⁴ The courts are inclined to grant the discretionary remedy where sufficient interest or connection with England as the natural forum can be established. Following principles of comity, English Courts do not grant ASI on proceedings initiated in a “second country” to protect litigation in a “third country”.¹⁵ The protection of English jurisdiction cannot be labelled as “interference” since the power of the English Court is only upon the defendant (foreign claimant), not upon the processes of the foreign court.

Public policy considerations. — Though public policy has not been a ground for obtaining an ASI, English Courts have applied the concept when granting an ASI in cases where the foreign court adopted an exorbitantly misplaced view, contrary to international public policy.¹⁶ Clearly, a determination by the foreign court contrary to international public policy cannot be protected. The matter is beyond the interest of the litigating parties, and it cannot be argued that if an approach favours the defendant (foreign claimant), it is unlikely to favour the claimant.

Comity

The previous section highlights that comity is an indispensable factor for the English Courts granting an ASI to protect its own jurisdiction. It is a clear indication that an ASI is an order in personam and the argument that it impinges on the jurisdiction of the foreign court does not find favour. The wrongdoing of the defendant cannot be promoted by circumventing English proceedings and seeking advantage in a foreign forum. A direct impact of comity considerations on the English Courts is in the cautious, non-interventionist manner yet at the same time protecting intervention of foreign proceedings from the processes and jurisdiction of the English Court.¹⁷ In cases such as issues amenable to English jurisdiction but taken up by the foreign court,¹⁸ impact of foreign proceedings on the process of gathering and recording evidence in an English trial¹⁹ or foreign ASI on English proceedings contrary to comity or re-litigation of a matter decided on merits before the English Courts are classified as illegitimate interference with the process of English Courts. These are exorbitantly unjustified grounds and an ASI by the English Courts on such aspects is in line with considerations of comity. This again, cannot form an argument for a defendant to allege undue advantage to the claimant at their cost.

Sabah Shipyard (Pakistan) Ltd. v. Islamic Republic of Pakistan is a peculiar case worth discussion. The English Court upheld a non-exclusive jurisdiction agreement.²⁰ Though it contained a choice of court clause, it was upon the discretion of the court whether it exercises jurisdiction (or not). In this case, an anti-ASI was issued by the English Court to prevent the vexatious proceedings which were commenced in the foreign court to frustrate the proceedings in the English Court. Clearly, considerations of comity are a matter of judicial discretion and cannot be restricted to an exhaustive list under any statute, regulation, or code.

Equity commands that the claimant seeking an anti-suit injunction must approach the court “like a shot.” Law comes to the aid of those who are vigilant and do not sleep over their rights. A delay may be construed to mean a waiver of rights and the intention of frustrating foreign proceedings which the English Courts will never endorse.²¹ In such cases, a plea seeking ASI will be refused. The objective is to prevent issuance of ASI against principles of comity. An intervention in proceedings at an advanced stage in a foreign court wherein judicial resources have been utilised must be curbed. Only to the extent that comity is mutually respected, English Courts will follow it as a cardinal principle when determining whether an ASI should be granted. If the conduct of a foreign court displaces or diminishes comity considerations, it sets up a valid ground for English Courts to grant an ASI.

Conclusion

Anti-suit injunctions are widely criticised and misconstrued as intervention of English Courts in foreign proceedings. In fact, it is parties who are restricted from approaching or continuing foreign proceedings in foreign courts. The restriction on parties is after careful consideration and appropriate exercise of “discretion” by the English Court. In the light of this article, this essay concludes that, anti-suit injunctions are a boon for parties to protect commercial interests. It has impacted several other jurisdictions across the world such as Australia. Also, in Canada, “injustice” is the ground for restraint on foreign proceedings, a slight departure from the English view. Clearly, if the ASI orders are abolished, there does not seem to be any other means to serve the purposes that ASI do.