Jump to Content Jump to Main Navigation
The Anti-Suit Injunction by Raphael, Thomas (9th October 2008)

1 Introduction

From: The Anti-Suit Injunction

Thomas Raphael

Subject(s):
Injunctions to restrain proceedings abroad — Non-contractual anti-suit injunctions — Jurisdiction under the Brussels-Lugano Regime — Mandatory provisions and public policy

(p. 1) Introduction

1.01  An anti-suit injunction, in its most typical form, orders a party to cease to pursue court proceedings abroad.1 It is backed by the threat of punishment for contempt of court if it is not obeyed. It is little surprise that it is one of the most controversial and contested remedies in the court’s armoury.

1.02  Anti-suit injunctions have been criticized, especially by authors and judges from civil law systems, where anti-suit injunctions are largely but not entirely unknown.2 It has been is argued that they are irreconcilable with (p. 2) international comity and public international law, and amount to an unjustifi able interference with the sovereignty of the foreign state and the jurisdiction of the foreign court. Yet there should be little doubt about the power of the remedy as a practical tool.3 In the game of ‘multi-dimensional chess’ (p. 3) that international litigation can become,4 the anti-suit injunction can be a dramatic way of reducing the number of pieces on the board, and shaping the moves that can be taken.5 Experience also shows that it can, on occasion, be the only effective tool for achieving practical justice.6

1.03  This work is intended to provide a detailed analysis of the principles and case law governing the grant of anti-suit injunctions by the courts of England and Wales.7

1.04  The remainder of this Introduction will deal with the following topics:

  • •  Terminology and characterization (Section A).

  • •  The landscape of the remedy (Section B).

  • •  Anti-suit injunctions and comity (Section C).

  • •  Human rights law (Section D).

  • •  Public international law (Section E).

A.  Terminology and Characterization

1.05  An anti-suit injunction is an order of the court requiring the injunction defendant8 not to commence, or to cease to pursue, or not to advance (p. 4) particular claims within, or to take steps to terminate or suspend,9 court or arbitration10 proceedings in a foreign country, or court proceedings11 elsewhere in England. The order is addressed to, and binds, the actual or potential litigant in the other proceedings, and is not addressed to, and has no effect on, the other court.12

1.06  Although a remedy of this type has formed part of English law for over 200 years,13 it used to possess no convenient abbreviation, and was referred to in periphrastic terms.14 The label ‘anti-suit injunction’ is a recent import from the United States,15 but has become the usual name in modern English law.16

1.07  In Turner v Grovit, Lord Hobhouse suggested that the phrase ‘anti-suit injunction’ was misleading, ‘since it fosters the impression that the order (p. 5) is addressed to and intended to bind the foreign court’, and proposed the alternative terminology of ‘restraining orders’.17 It is true that there is an ambiguity in the term ‘anti-suit’, and referring to an ‘anti-pursuit of suit’ injunction would be more accurate, if unacceptably clumsy. Yet the phrase ‘restraining order’ is a little more than a tautology for any prohibitory injunction; it does not identify the particular type of restraint in which we are interested.18 Lord Hobhouse’s recharacterization19 has found no supporters, and the term ‘anti-suit injunction’ has become the uncontested and standard terminology.20

B.  The Landscape of the Remedy

1.08  The English courts’ willingness to grant anti-suit injunctions has waxed and waned, and there have been considerable divergences of opinion and development of principle.21 Many issues remain unresolved, including whether non-contractual anti-suit injunctions are granted to enforce an (p. 6) equitable right of the injunction claimant,22 and the formulation of the test for the grant of non-contractual anti-suit injunctions.23

1.09  However, the broad landscape of the substantive law of the remedy is now mostly settled, and the English courts’ propensity to grant anti-suit injunctions has become relatively predictable. Injunctions will be predominantly granted in two main situations: first, ‘contractual’ injunctions, where foreign proceedings are in breach of a contractual forum clause providing for the exclusive jurisdiction of the English courts or for London arbitration;24 and second, ‘alternative forum’ cases,25 where foreign proceedings overlap with matters that are being litigated or can be litigated in England, and are also vexatious and oppressive (or unconscionable) for a variety of reasons.26 There are also other less common categories where injunctions can be and have been granted, such as ‘single forum’ cases, where injunctions are granted to restrain the pursuit of foreign proceedings abroad which can only be pursued abroad, and anti-anti-suit injunctions, whose purpose is obvious from their name.27 Injunctions to restrain the pursuit of proceedings in England are possible, but rare in practice (outside the context of insolvency, where they are routine).28 Injunctions can in principle be granted to restrain the pursuit of foreign arbitration proceedings as well as the pursuit of court proceedings, but the supervisory role of the court of the seat of the arbitration, and the growing recognition of the principle of Competence-Competence,29 make this rare.30

1.10  The Brussels-Lugano regime has imposed restrictions on the grant of anti-suit injunctions where they seek to restrain proceedings in other (p. 7) Brussels-Lugano member states, following the decision of the European Court of Justice in Turner v Grovit.31

C.  Anti-Suit Injunctions and Comity

Principles of comity

1.11  In ordinary language, the word ‘comity’ refers to mutual courtesy or civility.32 In public and private international law,33 the phrase the ‘comity of nations’ in truth refers to several different concepts that bear a family relationship.34 The linking idea is the underlying notion that different nations, and in particular their courts and legal systems, owe each other mutual and reciprocal respect, sympathy and deference, where appropriate.35 Comity is a principle d’ordre public, and not a question of private rights and duties; the notion of mutual respect it reflects exists, or should exist, between different states, legal systems, and courts.36

This underlying notion finds its expression variably in different contexts.37 Comity can refer to the mutual obligations imposed on states by public international law.38 However, comity goes beyond the principles of public (p. 8) international law and includes more general imperatives of international public policy which do not amount to rules of law.39 Reasoning based on comity is deployed to justify particular rules of international and domestic law. Thus, comity is used to justify the principles of sovereign immunity,40 and the doctrine of non-justiciability;41 and to explain the willing cooperation that the English courts seek to give to requests for international judicial assistance in evidence gathering.42

1.12  So far as is relevant to anti-suit injunctions, the notion of the comity of nations underpins, justifies, or is deployed in, four main concepts in English jurisprudence:43

  • •  The principle that one state’s courts should not, or should not without good reasons to do so, grant remedies that interfere even indirectly with the territorial and adjudicatory sovereignty of a foreign legal system.44

  • •  The acceptance that the decisions and judgments, and decision-making independence, of foreign courts and states are entitled to a degree of deference, over and above the rules of res judicata and the recognition of foreign judgments.45

  • •  The idea that each state’s legal system has its own natural sphere of influence, within which the presumption against interference by another (p. 9) state’s courts is of particular force, but outside which a state is entitled to a lesser degree of deference.46

  • •  The converse concept that a court has a greater standing to intervene if a matter does fall within its own natural sphere of influence.47

1.13  Comity in this context is a set of principles or values, rather than a hardedged rule, and is susceptible to being weighed against other principles or values.48 The principles of comity have shaped the existing rules for the grant or refusal of anti-suit injunctions; and comity also remains an independent consideration in the exercise of the court’s discretion whether or not to grant an injunction.49

The English courts’ commitment to the anti-suit injunction

1.14  The principles of comity are in potential tension with the grant of anti-suit injunctions to restrain foreign proceedings,50 although what comity actually demands in any particular case is usually debatable. Thus, in Midland Bank v Laker, Leggatt J at first instance took the view that ‘comity with the courts of a friendly state required that any action which was properly commenced in the United States courts in accordance with United States procedure ought not to be restrained by the English court’; but the Court of Appeal begged to differ: ‘comity in such a context as this is a matter on which different views can be held’.51

(p. 10) 1.15  Indeed, it has been obvious from the very beginnings of the anti-suit injunction that it is a remedy with the potential to cause conflict with other legal systems. The first reported application for an anti-suit injunction to restrain foreign proceedings where the question of principle was discussed was rejected on the grounds that it was a ‘dangerous case’.52 Even the anti-suit injunction’s domestic parent, the ‘common injunction’, by which the Court of Chancery of England restrained proceedings before the common law courts of England, gave rise to acute inter-jurisdictional conflicts between the courts of common law and the Court of Chancery which lasted until after the Glorious Revolution.53

However, the legitimacy of the remedy has not faced a serious54 root-and-branch challenge in England since Bushby v Munday in 1821, where it was contended that ‘it would be a violation of the principles of international law to stay [the proceedings in the Scottish Court of Session] by the injunction of this court’. Sir John Leach VC dismissed the argument, because although he accepted that ‘over the Court of Session this court has not, nor can pretend to have, any authority whatsoever’ he thought that this did not matter. He reasoned that ‘where parties Defendants are resident in England, and brought by subpoena here, this Court has full authority to act upon them personally with respect to the subject of the suit, as the ends of justice require; and with that view, to order them to take, or to (p. 11) omit to take, any steps or proceedings in any other Court of Justice, whether in this country, or a foreign country’.55

1.16  The personal logic which lies at the heart of Sir John Leach’s decision remains the starting point of the common law’s response to the argument that the anti-suit injunction is irreconcilable with comity.56 Although it has often been criticized,57 the personal logic of the anti-suit injunction is valid and real, as the injunction does not seek to compel the foreign court in any way.58 Nevertheless, there has been a growing acceptance that the antisuit injunction does indirectly interfere with the foreign court’s jurisdictional sovereignty.59 In the recent case law, the anti-suit injunction has been tested against comity at the margins of the remedy.60 But the question of whether the anti-suit injunction is inherently irreconcilable with comity has not been given a fresh examination in modern times.61

(p. 12) 1.17  There is little prospect in the foreseeable future of any radical challenge to the anti-suit injunction succeeding before the English courts. The House of Lords have considered the anti-suit injunction on four occasions in the past ten years62 and have given no hint that they were concerned about the nature of the remedy.63

Practical justice

1.18  The English courts’ commitment to the anti-suit injunction reflects a perception that it can be a vital tool for achieving practical justice. The court will often be faced with a situation where it has concluded that the injunction defendant’s pursuit of foreign litigation is clearly wrongful by English standards, and possibly also by the standards of the foreign jurisdiction, and it has to hand a quick and effective remedy to deal with the conduct of the claimant abroad, in the shape of the anti-suit injunction. Even if the foreign court will eventually reach the same conclusion, a similarly quick and effective remedy may well not be available in the foreign court, for example if its procedure is notoriously slow;64 or if its procedure provides no means for a quick dismissal on jurisdictional grounds.65 Letting the injunction defendant continue with his litigation will not only cause the innocent party to incur unnecessary costs abroad, but it can also change (p. 13) the result of the dispute between the parties.66 Every practising litigator will know that it can be extremely difficult to conduct litigation in unfamiliar jurisdictions; and that even parties with strong claims, when faced with harassment on other fronts, can lose the will to fight.67

Further, the anti-suit injunction is the only remedy capable of dealing with the extreme but not unknown situation where a well-funded and unscrupulous party, convinced of the weakness of his prospects in the natural forum for the resolution of the dispute, commences litigation in a multiplicity of other courts or arbitration tribunals. Requiring the injunction claimant to contest those claims in every single other court will be disproportionately expensive.

1.19  These advantages must be weighed against the serious practical difficulties to which anti-suit injunctions can give rise when the foreign court objects to the grant of the injunction.68 Very real offence can and has been taken by foreign courts to the perceived interference with their sovereignty;69 and anti-suit injunctions will usually be refused enforcement abroad.70 Between two countries that grant anti-suit injunctions, an escalating ‘arms race’ could result,71 with anti-suit injunctions being met or (p. 14) pre-empted by anti-anti-suit injunctions, which might in turn be met or pre-empted by anti-anti-anti-suit injunctions.72 Clashes of this nature have occurred, most famously in the Laker Airways litigation,73 but also on other occasions.74 The perceived need to avoid such conflicts has led some (p. 15) writers to suggest that ‘offensive’ anti-suit injunctions should not be granted, and that courts should confine themselves to the grant of ‘defensive’ anti-anti-suit injunctions, where this is necessary.75

However, conflicts of this kind are likely to be rare provided that both legal systems pay sufficient regard to comity when considering whether to grant anti-suit injunctions and in particular anti-anti-suit injunctions.76 Where conflicts do arise they can be resolved by the exercise of common sense. The grant of anti-suit injunctions as between common law courts has not disrupted the generally harmonious relations between them.77 So to abstain from all ‘offensive’ uses of the anti-suit injunction because of the risk of conflicts like this would be an overreaction.

1.20  Nevertheless, even if sufficient caution is deployed in the grant of anti-suit injunctions to render their use acceptable in practice, it is worth examining whether the anti-suit injunction can in truth be reconciled with the principles of comity. The issue is pressing, as the legitimacy of anti-suit injunctions has of late come under repeated attack, by foreign legal scholars and foreign courts, and also by the European Court of Justice.

The absolute challenge based on sovereignty and jurisdiction

1.21  A forceful and fundamental challenge to the anti-suit injunction’s legitimacy has been advanced by scholars and judges from civil law legal systems.78 The challenge is made up of two main arguments. First, that as a (p. 16) matter of sovereignty, it must always be the court before which proceedings are brought, applying its own national law and policy, that should decide on whether those proceedings are or are not properly brought before it.79 Second, that it must always amount to an illegitimate interference with the adjudicatory jurisdiction of a court for another court to decide whether or not that adjudicatory jurisdiction can or cannot be invoked.80

From the perspective of these arguments, the common law analysis that there is no direct interference with the foreign court because the injunction operates in personam only, is dismissed as irrelevant, since the production of the same result by indirect means is viewed as equally objectionable.81

1.22  The conflict between this absolute challenge and the common law approach to the anti-suit injunction derives from irreconcilably different assumptions as to the role of a legal system, and the values to which it should give primacy.

(p. 17) The ‘civil law’ arguments based on sovereignty and jurisdiction sketched above give priority to public judicial authority rather than private justice. The dominant consideration is not where a dispute should justly be resolved, but the doctrinal principle that the receiving court’s authority to determine what litigation may be brought before it should be unquestioned by foreign courts. Compared to this principle of sovereignty, the private rights and obligations of the parties, and the practical consequences of upholding the principle, are of relatively little importance.82

In contrast, at the heart of the common law concept of civil justice is the imperative that a just resolution must be achieved for a private dispute. In relation to conflicts of jurisdiction, the question of principal importance, as a matter of justice, is where a dispute should be resolved in order to do practical justice between the parties, and in accordance with their private law rights.83 Public law considerations of the sovereignty of foreign courts, and relations between courts, encapsulated in the concept of comity, are second-order constraints, to be deployed sparingly where they conflict with private justice.84 This conception of the function of courts and of justice naturally leads to a personal logic being applied to anti-suit injunctions, not merely as a matter of formality, but as a substantive reflection of the court’s underlying concept of justice.85

(p. 18) 1.23  There is a sense in which conflicts as deeply rooted as this86 are not susceptible to resolution by argument.87 It is no part of the purpose of this chapter to contend that all cases in which the English courts have granted anti-suit injunctions can be justified from an international perspective. Yet it is suggested that there are cases where a rigid application of a dogmatic conception of sovereignty would be unjustified, and would clash with principles as valid as those it seeks to uphold. Indeed, by giving overwhelming importance to the judicial sovereignty of the courts of the ‘receiving’ state Y, the sovereignty of the courts of the ‘originating’ state X to regulate their own proceedings could be undermined.

To take one strong example, it is standard in common law systems for one party to be required to disclose its relevant private documents to the other party in order for justice to be done, subject to strict controls, including obligations of confidentiality not to use the documents obtaining on disclosure or discovery in any other context or for any other purpose.88 Breaches of these obligations—for example by leaking protected information to the press—can be restrained by injunction,89 or even directly punished by contempt of court.90 If a party that had received disclosed material but threatened to breach its obligations by deploying that material in foreign proceedings could not be prevented from doing so by injunction,91 the ability of the original court to control the proceedings before it would be seriously undermined.

Similarly, if an absolute rule based on sovereignty or jurisdiction were adopted, it would be impossible even to grant anti-anti-suit injunctions(p. 19) , where abusive applications for anti-suit injunctions in foreign courts were made or threatened. Even those writers within the common law world who doubt the legitimacy of anti-suit injunctions tend to make an exception for the grant of anti-anti-suit injunctions to protect the jurisdiction of the originating state from inappropriate foreign anti-suit injunctions.92

1.24  To dismiss the personal logic of anti-suit injunctions as an irrelevant formalism is particularly inaccurate in cases where the injunction defendant owes a concrete personal jurisdictional obligation not to litigate abroad.93 A contractual anti-suit injunction does in a very real sense enforce personal obligations of the injunction defendant. But once this is recognised, one of the foundations of the absolute ‘civil law’ challenge is weakened. Even if the injunction does indirectly affect the sovereignty or jurisdiction of the foreign court, this is a direct consequence of the personal obligations which the injunction defendant has assumed.94

(p. 20) 1.25  The English courts do not consider that a foreign anti-suit injunction is necessarily an illegitimate interference with their own process.95 Further, although the reaction from foreign courts to English anti-suit injunctions has occasionally been hostile, this has not always been the case. Unsurprisingly, the courts of other common law legal systems that also grant anti-suit injunctions have accepted that injunctions restraining the pursuit of proceedings before them may be legitimate.96

1.26  Consequently, at least in those cases where the jurisdictional relationships between the states in question are not regulated by a controlled ‘closed system’ of jurisdiction,97 an absolute principle that comity must always (p. 21) preclude the grant of anti-suit injunctions to restrain the pursuit of proceedings before the courts of a foreign state has little attraction other than its simplicity.

Comity and the right to decide

1.27  There is a subtler line of challenge, derived from considerations of comity, which has been articulated by some writers from both civil law and common law systems.

In many cases, the arguments that can be put before the originating court in support of an injunction, or parallels to them, can be put before the receiving court, on an application to stay proceedings before it. If an argument can only be advanced with force before the originating court, that will usually be because of a difference of national law and policy between the two states. Consequently, two questions must be asked: where the same points or parallels to them can be made abroad, what is the need, or what gives the right, for the originating court to intervene? And where the same points cannot be made abroad, what gives the originating court the right to intervene (the need being obvious)?98 It could be argued that, if those questions are treated with sufficient seriousness, then it will be apparent that anti-suit injunctions should not be granted as a matter of comity, save perhaps in very limited circumstances, because the indirect interference with the foreign court is not justified by any need or right that can be identified. This argument has the attraction of flexibility, because it admits of the possibility that the originating court might have the need and right to intervene.

1.28  The English courts have not been deaf to these questions. In Aérospatiale, a radical change in the case law was introduced by Lord Goff’s conclusion that it would be inconsistent with comity for an injunction to be granted merely because there was a difference of view between the English court and the foreign court as to which is the natural forum, and that something more was required to justify intervention.99 If the foreign court will consider whether to stay litigation before it on grounds of forum non conveniens, (p. 22) the English court will often expect the injunction claimant to seek such a stay, at least in the first instance, rather than applying for an injunction.100 Most importantly, in Airbus v Patel, Lord Goff articulated the principle that, as a matter of comity, the English court must have a ‘sufficient interest’ in the matter to justify intervention.101 Nevertheless, there are many cases where the English courts have answered, and continue to answer, the question of whether they have a need and right to intervene with a resounding affirmative.

1.29  Thus, in contractual cases, the English court has derived its right to intervene from the parties’ contractual choice of England as the forum for the substantive disputes.102 There are strong arguments to support this. It is possible to hypothesise a clear and clearly valid contractual clause which gives exclusive jurisdiction over any underlying dispute arising out of the contract to the courts of X, also gives exclusive jurisdiction over any dispute as to forum to the courts of X, and finally provides that the courts of X may award damages in respect of, and restrain by injunction, any breach of the clause committed by litigating elsewhere than in the courts of X. If such a clause has been agreed, then to prohibit the grant of the injunction for which it provides would interfere with freely assumed contractual obligations.103 But this is the established interpretation given by the English courts to any standard English exclusive jurisdiction clause, an interpretation of which many well-advised contracting parties are well aware.104 In turn, the need for the injunction follows from the fact that if the injunction is not granted, the injunction claimant will have to defend himself, or make an appearance to challenge jurisdiction, in the foreign court, which is exactly what he contracted to avoid,105 as well as from the unjustified costs and expense that the continuation of the foreign proceedings (in breach of (p. 23) contract) will produce, and the risk that the defendant abroad may involuntarily submit to the jurisdiction of the foreign court.106

Nevertheless, these arguments do not get to the heart of the problem. The situations where the greatest controversy is likely to arise are those where the foreign jurisdiction applies different conflicts of laws rules, or mandatory rules of public policy, that invalidate an exclusive forum clause which English conflicts of laws rules and contract law would treat as valid.107 In such a case, what gives the English court the right to impose its view of the validity of the clause over the injunction defendant’s ability to invoke the possibly contrary view that might be taken by the foreign court?108

1.30  To date, the primary response given by the English courts has been simply that they must apply their own conflicts of laws rules, and give effect to the contractual obligation that those rules dictate.109 But from an international perspective, this may well not be enough as a matter of principle.110 It is arguable that, in order for an injunction in such a case to be reconcilable with comity, and to avoid parochialism, there would at least have to be some system-transcendent reason why it was appropriate for English conflicts of laws rules to be given overriding effect, and for the English court to intervene. One possible candidate for a system-transcendent rationale is the principle of freedom of contract itself:111 if the parties have elected to contract under a particular system of law, including that system’s conflicts of laws rules, and for the exclusive jurisdiction of that system’s courts, then their personal choices should be respected, and their personal obligations enforced; and it is legitimate for the chosen court to enforce those obligations.112 This sort of rationale would in many but not necessarily all (p. 24) cases justify enforcing a freely agreed exclusive jurisdiction clause by injunction.113

However, the opponent of anti-suit injunctions might respond that even this tribute to comity is insufficient, there being no such thing as a systemtranscendent rationale, since no legal system can escape its own prejudices;114 and that in any event, no such rationale would justify overriding the injunction defendant’s right to rely on the foreign court’s law and policy choices.

1.31  At this point of the analysis, we are therefore brought hard up against a fundamental choice between values: does the importance that comity places on the sovereignty of other legal systems, and their right to impose their own law and policy choices, require non-intervention, irrespective of any system-transcendent rationale? Or can the importance of doing practical justice, and enforcing a party’s personal obligations, according to the originating system’s own perception of what is right (especially on as system-transcendent a basis as is achievable), be sufficient to warrant an order against the party concerned, even at the price of tensions with comity? The common law chooses the latter result.115 This is, again, a choice between fundamental values, which is as much a political as a legal issue.

Yet in defence of the common law answer, it can be noted that insisting non-intervention is not a neutral solution. Although intervention by anti-suit injunction enforces the originating legal system’s perception of what is right, insisting on non-intervention would conversely ensure that a party could, without interference, procure that his freely agreed obligations be overridden by finding a legal system that was willing to override them.116 To give a practical example, the question in issue in The Front Comor117 is not, in truth, whether the English court ‘trusts’ the (p. 25) Italian court: it is whether Italian or English conflicts of laws rules and contract law should be applied to determine whether an English law arbitration clause providing for arbitration in England is binding.118

1.32  A parallel and perhaps even more problematic debate arises where injunctions are sought on the basis that the foreign litigation is vexatious and oppressive. In these non-contractual cases, the interference to comity is not warranted by any concrete personal obligation,119 nor by any express or implied agreement that the originating court is the appropriate court to determine questions of forum. So the argument that the originating court has a right to intervene necessarily starts from a weaker foundation.

The common law has recognized this, in particular by Lord Goff’s imposition of the requirement that the court must have ‘sufficient interest’ in determining the question of forum before an injunction can be granted.120 Yet the difficulty, and the debate, arises in identifying the level of connection or interest that should be required to give the originating court the right to intervene, notwithstanding the indirect interference with the foreign court that the injunction involves.121 For example, under current English law, the English courts will have a sufficient interest if they view themselves as the natural forum for the dispute (and an injunction can then be granted if the foreign litigation is vexatious and oppressive).122 (p. 26) In contrast, some American circuits have taken a generally more restrictive approach, and require that anti-suit injunctions can only be granted to protect the forum’s jurisdiction, to prevent evasion of the forum’s important public policies, or where the foreign suit was brought in bad faith or to vex or harass the party seeking the injunction.123 Some American scholarship has gone further and has suggested that it is only where the originating legal system needs to protect its own judicial sovereignty by granting anti-anti-suit injunctions that it will have a legitimate ground to intervene.124

1.33  It is suggested that to preclude all non-contractual anti-suit injunctions, or to adopt restrictive and rigid rules in respect of them, would be inappropriate. For example, the English court has restrained applications to the US courts for the purpose of evidence gathering, where the actual substantive proceedings were in England, and the evidence-gathering methods in the US would clash with the good management of an English trial.125 These injunctions are clearly consistent with comity. The English courts were entitled to control the proceedings before them, and the evidence to be adduced therein, and it appears that the American courts may even have welcomed the grant of appropriate injunctive relief by the court with jurisdiction over the merits.126

1.34  Nevertheless, there is real force in the criticism that anti-suit injunctions when granted in conventional ‘alternative forum’ cases to restrain duplicative litigation abroad amount to the originating court substituting its opinion of how and when litigation should proceed for that of the court of (p. 27) the forum, without any obvious right to do so. Perceptions of what it means to be the ‘natural’ forum vary widely between legal systems.127

It is arguable that in order to pay due regard to comity, something more should be required, over and above a conclusion that the originating court is the natural forum. One possible additional criterion would be a requirement that the originating court should not merely be the natural forum for the underlying litigation but also the natural forum to determine the question of forum—which could be satisfied, for example, in a case where all the relevant facts, individuals, and disputes lay within its territorial jurisdiction—or should have some other strong reason to determine the question of forum.128

1.35  However, it is unlikely, at least for the foreseeable future, that the English courts will accept that the barriers imposed by comity, even in noncontractual cases, should be raised high enough sharply to limit their powers to grant anti-suit injunctions. One of the fundamental assumptions of many of the writers who seek to restrict anti-suit injunctions is that one cannot criticize or suspect the quality of justice done in foreign courts, or the approach they take to their own jurisdiction. The English courts are hesitant to criticize foreign courts, and will usually refrain from doing so explicitly.129 But outside closed jurisdictional systems, such as the Brussels-Lugano regime, there is no reason to assume that foreign courts will exercise restraint in the exercise of their jurisdiction.130 If so, then by declining to intervene by injunction, the English court would be without an effective remedy in the face of exorbitant assumptions of jurisdiction by (p. 28) foreign courts.131 In these circumstances, confronted with the ‘jungle’132 of independent jurisdictions that make up the world outside the European Union, the English courts are not likely unilaterally to disarm themselves, nor to adopt a degree of deference to comity which would preclude them from doing practical justice in the face of vexatious litigation abroad.133

D.  Human Rights Law

The right of access to a court

1.36  It has been argued134 that the grant of an anti-suit injunction to restrain a party from litigating in the court of his choice is an infringement of his human rights, and in particular an unwarranted restriction on his right of effective ‘access to a court’, as guaranteed by Article 6 of the European Convention on Human Rights,135 which the English courts are obliged to enforce.136

(p. 29) Does the right of access to a court apply extraterritorially?

1.37  Any restrictions imposed on rights of access to a court by anti-suit injunctions will limit the injunction defendant’s freedom to act in the state of the court of the proceedings restrained, not in the state of the court granting the injunction. Consequently, two threshold questions must be answered: first, does the injunction defendant fall within the originating state’s jurisdiction for the purposes of the Convention; and second, does the right of access to a court apply extraterritorially?

1.38  As to the first question, a defendant to an extraterritorial injunction granted by the courts of a contracting state will probably fall within the ‘jurisdiction’ of that state for the purposes of the Convention,137 and therefore in England within the scope of the Human Rights Act 1998,138 provided that the Convention right in question applies extraterritorially.

1.39  The question of whether the right of access to a court under Article 6 applies extraterritorially, and can potentially be affected by the restrictive effect of anti-suit injunctions in the foreign state, is more difficult.

(p. 30) The existing Strasbourg case law on the right of access to the court under Article 6 concerns only the obligations of states to protect, and not impede, the right of access to their own courts.139 If this approach is extrapolated, the originating state will not have any general responsibility to ensure that individuals can access the courts of the foreign state, nor any obligations in respect of the fairness of proceedings in that state, which may well not be party to the Convention.

However, the European Court of Human Rights has stated obiter that in extradition and deportation cases, Article 6 has a limited extraterritorial effect. A contracting state will breach Article 6 if the extradition or deportation creates a real risk that the individual will suffer a ‘flagrant denial of justice’ in the receiving state,140 a phrase which is intended to set a higher threshold than a mere breach of Article 6.141 These decisions do not expressly concern the extraterritorial application of the right of access to the court. Nevertheless, it is suggested that the Strasbourg Court may well conclude that the right of access to a court does have extraterritorial effect,142 at least in respect of rights of access to the courts of other (p. 31) contracting states,143 because the injunction’s effects on rights of access to courts in other countries are immediate and direct, and certainly ‘proximate’.144 In McElhinney v Ireland, the European Court of Human Rights was apparently prepared to accept, when considering whether Ireland had unjustifiably restricted access to its own courts, that the ability of the applicant to access the courts of the United Kingdom for the determination of the same matters was a material factor against a finding that Article 6 had been infringed,145 illustrating that the right of access to a court can legitimately be assessed on a transnational basis.

(p. 32) 1.40  However, even if the right of access to a court does apply extraterritorially, it remains to be seen whether it will only apply to prevent ‘flagrant denials of justice’,146 or whether it will apply according to its ordinary logic without requiring a higher threshold. The reasons for the limited scope of the extraterritorial obligation in the extradition cases include the uncertainty of predictions as to an individual’s future treatment, and the point that the extraditing state will not itself be directly involved in any violation of the applicant’s rights, and may well have no desire that they be violated. In contrast, where an anti-suit injunction is granted, any potential interference with the injunction defendant’s rights of access to a court will follow directly, and deliberately, from the orders of the courts of the state whose responsibility is said to be engaged. It is therefore arguable that the right of access to the courts will apply to anti-suit injunctions extraterrorially without qualifiation. The discussion below will proceed on that assumption; but it must be borne in mind that some higher threshold might be required.

The right of access to a court and contractual anti-suit injunctions

1.41  In any event, even if no higher threshold for the application of the right of access is required, the argument that anti-suit injunctions infringe the right of access to a court has little force in the standard ‘contractual’ case where an anti-suit injunction is sought to enforce an exclusive forum clause. The Strasbourg court accepts that a party may ‘waive’ his Article 6 rights by a freely chosen exclusive arbitration clause.147 There is no good reason why the same doctrine of waiver should not apply to exclusive forum clauses. In turn, if a party has validly waived his Article 6 rights to access a particular court there is no relevant right which the anti-suit injunction could restrict or infringe.

(p. 33) In addition, in The Kribi, Aikens J rejected an argument that Article 6 should preclude him from granting a contractual anti-suit injunction, without referring to the argument that the exclusive jurisdiction clause had waived the injunction defendant’s rights of access to a court, on the simple and neat ground that the right of access to ‘a’ court does not entail a right of access to the court of your choice.148

The right of access to a court and alternative forum cases

1.42  The reasoning used by Aikens J in The Kribi, if correct, would also apply to all non-contractual alternative forum cases. However, it is not clear that Aikens J is right. A restriction on access to a particular court can in practice amount to a material hindrance on your rights of access to courts generally, especially where the restriction on your choice requires you to use one legal system rather than another. Instead, the relevance of the availability of another court may well be that it reduces the seriousness of the restriction on access, and renders it more easily justifiable.149 So it may well be necessary to consider whether the restrictions imposed by noncontractual alternative forum injunctions are permissible.

1.43  The Strasbourg case law makes clear that the right of access to a court does not entail unrestricted access to any court at all, still less to the court of your choice. It is not an absolute right, but may be subject to limitations, provided that those limitations do not impair the very essence of the right, pursue a legitimate aim, and comply with the principle of proportionality.150 Thus, the various mechanisms by which legal systems terminate (p. 34) or stay unmeritorious litigation before them, or deny their own jurisdiction over litigation, can in principle be compatible with the right of access to a court enshrined in Article 6.151 In particular, the English provisions restricting the commencement of actions by vexatious litigants are compatible with Article 6.152

However, from the point of view of the right of access to a court, the principal and perhaps only difference between the courts of state X granting an injunction to restrain vexatious litigation (or litigation in breach of contract) in state Y, and state Y itself staying or dismissing such litigation, is the identity of the decision-maker. Consequently, in an alternative forum case, the only restriction which an anti-suit injunction inherently involves is a restriction of the right to select the court that will make the decision. There is no obvious reason why the right of access to a court should carry within it a right to insist that the question as to whether a party can proceed with his litigation in state X must be decided in state X rather than state Y, as the substantive effect on the party’s actual access to a court is broadly the same. This illustrates that most arguments against the antisuit injunction which purport to be based on human rights are in reality driven by a hidden assumption as to what comity requires, and do not in truth derive from the right of access to a court.153 So the degree of restriction on the right of access to a court imposed by a normal alternative forum anti-suit injunction is limited, even in a non-contractual case.

1.44  In many alternative forum cases, the injunction is granted to prevent a party from proceeding with duplicative litigation in a second court when the substance of his dispute is already being litigated in the injuncting court. The desire to proceed with duplicative litigation, which ex hypothesi will have been found to be vexatious and oppressive, does not deserve, and is relatively unlikely to attract, extensive protection from the Strasbourg court. So it can be argued with force that the limitations imposed by (p. 35) normal alternative forum injunctions pursue a legitimate aim154 and will in many cases be proportionate, especially given the limited restrictive effect of the injunction when properly analysed. Indeed, the injunction claimant’s right not to be vexed and oppressed by duplicative litigation could also be viewed as an element of his own right to a fair trial.

1.45  However, even if the restrictions imposed by an anti-suit injunction were viewed as pursuing a legitimate aim (such as preventing vexatious litigation), it is by no means certain that the European Court of Human Rights would always accept that it was a proportionate method of pursuing that aim.

In particular, in alternative forum cases there could be situations where the inability of a party to obtain a determination of whether he can proceed before the courts of state X from those very courts could be viewed as a material restriction on the effectiveness of his rights of access to a court, for example where the party in question was a consumer resident in state X, and it would be burdensome for him to be involved in proceedings in state Y.155

Consequently, it is arguable156 that the English court should, in appropriate cases, take account of the possibility of restrictions on the right of access to a court in the exercise of its discretion whether or not to grant the injunction. However, it is to be hoped that the requirements of English law that the injunction should only be granted when ‘the ends of justice’ require it, and that it should not be granted if it would ‘deprive the [injunction defendant] of advantages in the foreign forum of which it would be unjust to deprive him’,157 will already have created a similar level of protection.

Article 6 and single forum cases

1.46  Article 6 is perhaps most likely to be relevant in ‘single forum’ cases, where the grant of an injunction will not merely deprive the litigant of his (p. 36) choice of court; it will also prevent him from bringing his claim in any forum whatsoever, if complied with. This does not mean that a single forum injunction is inherently irreconcilable with the right of access to a court, as Article 6 would not prohibit the striking out of claims by the court before which the proceedings were brought on the grounds that they are vexatious or oppressive, or an abuse of process.158 Nevertheless, it suggests, first, that great caution should be exercised before concluding that the grant of a single forum injunction is indeed in ‘the interests of justice’, and second, that the right of access to a court guaranteed by Article 6 is a relevant consideration in the exercise of the court’s discretion.

E.  Conflict with Public International Law

1.47  It is a long-established principle of public international law that the territorial sovereignty of independent states, including their adjudicatory sovereignty, should in general not be interfered with by other states.159 However, the implications of this principle for the exercise of extraterritorial civil jurisdiction by states remain uncertain. A rigid application of the concept of territorial sovereignty to the exercise of civil jurisdiction internationally would be unworkable,160 and would not represent state practice.161 Indeed, it has been suggested that customary international law imposes no material limitations whatsoever on the exercise of civil jurisdiction by municipal courts, other than established restrictions such as diplomatic and sovereign immunity.162 Even if, as is likely, public international law does actually impose more substantive limitations on the exercise of municipal civil jurisdiction internationally, the restrictions imposed are (p. 37) neither numerous nor constricting.163 A possible summary of the boundary drawn by the modern law is that the courts of a state can exercise jurisdiction over acts of a foreigner in a foreign state so long as there is a ‘sufficiently close connection to justify the first state in regulating the matter’.164

This language is similar to the tests of comity applied to the grant of anti-suit injunctions by the English courts since Airbus v Patel.165 However, the coincidence of phrasing by no means guarantees the international legitimacy of the English court’s practice of granting relief, as public international law (p. 38) might not accept the English view that there can be a sufficiently close connection between the originating court and the pursuit of litigation abroad by the injunction defendant, either at all, or in any particular case.166

1.48  Nevertheless, unless an interpretation of comity were to be adopted which precluded or at least severely confined anti-suit injunctions, it seems, on the basis of the available materials, that customary public international law probably does not significantly constrain the exercise of the power to grant anti-suit relief.

First, the principle of territorial sovereignty is a rule of customary international law derived from state practice. Anti-suit injunctions have been granted by common law courts for centuries without any apparent diplomatic protest by foreign states.167 In the circumstances, there is a forceful argument that state practice cannot support the conclusion that the principle of territorial sovereignty contains within it a prohibition of anti-suit injunctions.168

Second, the English courts have concluded that anti-suit injunctions can be reconciled with public international law, although the exploration of public international law by the courts in these decisions was limited. As discussed above,169 the argument that there was a conflict between the principle of territorial sovereignty and the grant of anti-suit injunctions was rejected by the English courts in Bushby v Munday,170 on the basis that the injunction was granted against the defendant only, and did not interfere with the courts of the foreign state. Similarly, the argument advanced in The Front Comor that anti-suit injunctions to enforce arbitration clauses were inconsistent with the New York Convention met with a curt rejection in the House of Lords.171

(p. 39) Third, there is some support in international law writings for the conclusion that anti-suit injunctions can, in principle, be reconciled with international law. The International Law Association has recognized the legitimacy of anti-suit injunctions in limited circumstances which are not obviously dissimilar to the conditions imposed by English law;172 and anti-suit injunctions have also received the approval of some ‘highly qualifi ed publicists’173 on international law.174 There are civil law writers who have adopted the contrary view, but thus far their arguments have consisted largely of assertion, and are not grounded in state practice.175(p. 40)

Footnotes:

1  For a more detailed definition, see Section A below.

2  Scotland, which stands between the common law and the civil law, grants anti-suit injunctions: Young v Barclay (1846) 8 D 774; Pan American World Airways Inc v Andrews [1992] SLT 268; Shell UK Exploration and Production Ltd v Innes [1995] SLT 807. Similarly, anti-suit injunctions are also known in Québec, a civil law jurisdiction but one which is ‘soumis à une forte influence du common law’: E Gaillard, ‘Il est interdit d’interdire: Réflexions sur l’utilisation des Anti-Suit Injunctions dans l’arbitrage commercial international’ (2004) Rev Arb 47, 53.

On the continent it appears that remedies similar to anti-suit injunctions have been granted by the Dutch Courts: T Rauscher, Europäisches Zivilprozessrecht Kommentar (2nd edn, 2006), 122, §20; Freshfields Bruckhaus Deringer, International IP Update, August 2004: ‘The Netherlands: Anti-suit Injunction Issued’, referring to the case of Medinol v Cordis KG 04/688 (although it may be that this case only involved the restraint of other proceedings before the Dutch courts). In France, the only example of an anti-suit injunction appears to be Banque Worms c Brachot, 19 November 2002 (Cass Civ 1ère), noted H Muir Watt, ‘Injunctive Relief in the French Courts: A Case of Legal Borrowing’ [2003] CLJ 573 (where the French Court of Cassation accepted the legitimacy of the remedy in a bankruptcy case; although it allowed the appeal on other grounds). However, see Stolzenberg v Daimler Chrysler Canada Inc [2005] ILPr 24 (French Cour de Cassation), §4 (denying the legitimacy of anti-suit injunctions). The Belgian courts have granted a form of anti-anti-suit injunction: Civ Bruxelles, 18 December 1989, RW 1990–1991, 676; noted by H Born, M Fallon, JT 1992 438; and commented on by A Nuyts, ‘Les principes directeurs de l’Institut de Droit International sur le recours à la doctrine du forum non conveniens et aux anti-suit injunctions’ Revue Belge de Droit International 2003/2, 536, 552–553.

A non-contractual anti-suit injunction has, it seems, been granted by the Supreme Court of Germany in an international divorce case, Reinhard RG 03/03/1938, RGZ 157 (referred to in P Schlosser, ‘Anti Suit Injunctions in International Arbitration’ RIW 2006, 486, and M Lenenbach, ‘Anti-Suit Injunctions in England, Germany and the United States: Their Treatment under European Civil Procedure and the Hague Convention’ 20 Loy LA Int’L & Comp LJ 257 (1997–1998), 273–274); however, the decision has been described as dubious and not generalizable: H Schack, ‘Germany’, in J Fawcett (ed), Declining Jurisdiction in Private International Law (1995), 189 at 204; see also A Dutta, C Heinze, ‘Anti-Suit Injunctions to Protect Arbitration Agreements’ 2007 RIW 411, stating that anti-suit injunctions are not available in German law.

3  A Briggs, ‘Anti-Suit Injunctions and Utopian Ideals’ (2004) 120 LQR 529, 530, observes that ‘as an antidote to jurisdictional shenanigans its usefulness is second to none’. In contrast, J Harris, ‘Restraint of Foreign Proceedings—The View from the Other Side of the Fence’ [1997] CJQ 283, suggests ‘the effect of the English injunction will be relatively limited’. This can sometimes be so in respect of injunction defendants who have no intention of ever visiting, owning assets in, or doing business in England: D Tan, ‘Damages for Breach of Forum Selection Clauses, Principled Remedies, and Control of International Civil Litigation’ (2005) 40 Tex Int L J 623, 644. But anyone who has had to advise a foreign director of a foreign company, to his surprise and indignation, that his next shopping trip to Harrods might lead to a stay in Wormwood Scrubs if he does not ensure the company complies with the English court’s in personam injunctive orders, will have a healthy respect for the potential power of the remedy.

It has been suggested that the anti-suit injunction achieves nothing which could not be more legitimately achieved by refusing to enforce the foreign judgment. See F Bachand, ‘The UNCITRAL Model’s Take on Anti-Suit Injunctions’, in Gaillard (2005), p 87. However, this does not reflect reality. If no anti-suit injunction can be granted, the defendant abroad will usually be faced with the choice of either submitting to the jurisdiction of the foreign court, or allowing judgment to be entered in default. A default judgment may not be enforceable in England if the originating state is not part of the Brussels-Lugano regime or another system of mutual enforcement; but it will be enforceable in the originating state and perhaps elsewhere. Yet if, on the other hand, the defendant does submit to the jurisdiction of the foreign court, that will often mean the foreign court’s judgment will be enforceable abroad (at least in common law systems). The complaint that the foreign court’s judgment was obtained as a result of the bringing of vexatious and oppressive proceedings, or proceedings brought in breach of contract, will not usually permit the English court to refuse recognition of it, under the conventional English rules as to the recognition of judgments (although the contrary has been suggested: A Briggs, ‘The Unrestrained Reach of an Anti-Suit Injunction: A Pause for Thought’ [1997] LMCLQ 90, 100–102). So in many cases, refusal to grant an anti-suit injunction will mean that the English court would lose any ability to resist the enforcement of the foreign judgment in England. In addition, even if a judgment is unenforceable in the jurisdiction where the defendant’s assets are located, the existence of an unpaid judgment can be a serious commercial embarrassment, which can damage the reputation of the defendant, and will also hinder the operation of any future business within the jurisdiction of the court of judgment or of any courts that will enforce its judgment.

4  See The Hon Judge MR Wilkey, ‘Transnational Adjudication: A View from the Bench’ (1984) 18 International Lawyer 541, 543.

5  See J Philips, ‘A Proposed Solution to the Puzzle of Anti-Suit Injunctions’ (2002) 69 U Chic L Rev 2007, 2010.

6  In Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 132G–133H, Lord Goff explained that outside closed jurisdictional systems, the anti-suit injunction was necessary to do practical justice, where foreign legal systems did not adopt the principle of forum non conveniens.

7  In this work, ‘England’ will be used as a convenient abbreviation for England and Wales, and ‘English law’ likewise. Readers on the other side of Offa’s Dyke are asked to forgive this.

8  ‘Injunction defendant’ or ’injunction respondent’ will be used to refer to the defendant or respondent to a claim or application for an anti-suit injunction; ’injunction claimant’ or ’injunction applicant’ will refer to the claimant or applicant on such a claim or application.

9  Mandatory anti-suit injunctions (discussed at Ch 3, §3.18) have in general been confined to requiring a claimant in the other proceedings to stay or discontinue or otherwise terminate his proceedings; with the exception of the anomalous, and old, case of Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132, there appears to be no example in the English case law of a potential claimant being positively required to sue in a particular forum. This is unsurprising as it will usually be wholly legitimate for a claimant to elect not to sue at all.

10  Injunctions to restrain arbitration proceedings abroad can also be referred to as ‘anti-arbitration’ injunctions. See Ch 11.

11  Injunctions to restrain arbitration proceedings in England are not traditionally analysed as anti-suit injunctions, but are instead viewed as part of the Court’s supervisory jurisdiction over English arbitrations: see Ch 11.

12  See Ch 3, Section E. There are some historical examples of injunctions affecting arbitrators in English arbitrations personally, but these are unlikely to be repeated in the future, and it is particularly unlikely that injunctions will be granted against arbitrators personally where the seat of the arbitration is abroad: see Ch 11, §§11.23 to 11.26.

13  See Ch 2.

14  See eg British Airways Board v Laker Airways Ltd [1985] AC 58 (HL), 81C: ‘the type of case that is of comparatively rare occurrence in the English courts in which the plaintiff seeks against a person amenable to the jurisdiction of the English High Court an injunction to restrain the defendant from bringing suit against him in a foreign court upon the ground that the plaintiff is entitled under English law to a legal or equitable right not to be sued in that foreign court by that person upon the cause of action that is the subject of such proceedings’.

15  Bank of Tokyo Ltd v Karoon [1987] AC 45 (Note) (CA), 59F.

16  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 127B–C (per Lord Goff); Donohue v Armco Inc [2002] 1 Lloyds Rep 425 (HL), §§20, 23, 39 (per Lord Bingham), §43 (per Lord Hobhouse, in quotation marks), §45 (per Lord Hobhouse); Glencore International AG v Exter Shipping Ltd [2002] 1 All ER (Comm) 1, §43. In West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL), Lord Hoffmann did not use the phrase, but Lord Mance did (at §29). In People’s Insurance Co Ltd v Akai Pty Ltd [1998] 1 SLR 206 (Sing HC), Choo Han Teck JC said with some gentle disdain that the kind of injunction he was declining to grant was ‘fashionably referred to as an “anti-suit” injunction’; but he did not propose an alternative shorthand. See A Briggs, ‘Anti-Suit Injunctions in a Complex World’, in F Rose (ed), Lex Mercatoria (2000), 219, 220.

17  Turner v Grovit [2002] 1 WLR 107 (HL), §§16, 23. In Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001–2002) 208 CLR 199, 243, Gummow and Hayne JJ similarly referred to ‘what are somewhat loosely called anti-suit injunctions’.

18  See Bell, §4.83, who also observes that the use of the phrase ‘anti-suit injunction’ allows one to distinguish conveniently between anti-suit injunctions, anti-anti-suit injunctions, and other examples of this family of remedies.

19  Lord Hobhouse’s attempt at relabelling should be seen as a one-off rhetorical device, aimed (without success) at making the anti-suit injunction appear respectable to the European Court of Justice. His use of the term ‘restraining order’ formed part of his opinion on the question of whether the anti-suit injunction was compatible with the Brussels-Lugano regime, which the House of Lords was referring to the European Court. The linchpin of Lord Hobhouse’s argument that the anti-suit injunction was not incompatible with the jurisdictional system of the Brussels-Lugano regime was the contention that it was a merely personal remedy that did not affect the jurisdictional sovereignty of the courts of the other member states (§§23–24). In the context of that argument, any phraseology which shifted the jurisprudential focus of the injunction onto the litigant abroad and away from the foreign court was helpful. But the European Court was unmoved, viewing any such ‘prohibition’, however labelled, as incompatible with the principle of mutual trust underlying the Brussels-Lugano regime: C-159/02, Turner v Grovit [2004] ECR I-3565, §27. It is worth noting that in Donohue v Armco Inc [2002] 1 Lloyds Rep 425 (HL), §§43, 45, decided by the House of Lords on the same day that it ordered the reference in Turner, Lord Hobhouse was content to refer to the ‘anti-suit injunction’ (albeit on one occasion in inverted commas).

20  See eg Dicey, §12.067, and fn 89; Gee, §14.001; Briggs & Rees, §5.34 and fn 196.

21  Donohue v Armco Inc [2002] 1 Lloyds Rep 425 (HL), §§19–20.

22  See Ch 3, Section C.

23  In short, should one ask whether the injunction defendant’s conduct is ‘vexatious and oppressive’, or is the test whether it is ‘unconscionable’, or should one apply a soup mixed from both tests? See Ch 4, Section E.

24  See Chs 7 and 10.

25  ‘Alternative forum’ cases, and the contrasting category of ‘single forum’ cases, are defined more precisely at Ch 5, §§5.02, 5.18.

26  See Chs 4, 5 and 9.

27  See Ch 5.

28  See Ch 6.

29  The phrase ‘Competence-Competence’ refers to the once controversial but now widely accepted principle that arbitrators can determine their own jurisdiction, and in many cases should be the preferred forum for determining their own jurisdiction. The principle has a Teutonic heritage and is sometimes referred to as ‘Kompetenz-Kompetenz’. See DAC Report, §§137–139.

30  See Ch 11.

31  C-159/02, Turner v Grovit [2004] ECR I-3565. See Ch 12.

32  See the Shorter Oxford English Dictionary.

33  Or at least common law perceptions of private and public international law, as comity appears to be a principle which is not recognised in civil law systems: M Lenenbach, ‘Anti-Suit Injunctions in England, Germany and the United States: Their Treatment under European Civil Procedure and the Hague Convention’ 20 Loy LA Int’L & Comp LJ 257 (1997–1998), 295.

34  Brownlie explains that, in addition to denoting a general ‘species of accommodation’ involving neighbourliness and mutual respect, comity is used ‘(1) as a synonym for international law; (2) as equivalent to private international law (conflict of laws); (3) as a policy basis for, and source for, particular rules of conflict of laws; and (4) as the reason for and source of a rule of international law’: I Brownlie, Principles of Public International Law (6th edn, 2003), p 28.

35  ‘Judicial Comity is shorthand for good neighbourliness, common courtesy, and mutual respect between those who labour in adjoining judicial vineyards’, per Sir John Donaldson MR in British Airways Board v Laker Airways Ltd [1984] QB 142 (CA), 186H (although in riposte to this, see S Males QC, ‘Comity and Anti-Suit Injunctions’ [1998] LMCLQ 543, fn 3); see also Settebello Ltd v Banco Totta and Acores [1985] 1 WLR 1050 (CA), 1057. A subtle discussion from an American perspective is found at R Raushenbush, ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039, 1064–1066.

36  British Airways Board v Laker Airways Ltd [1984] QB 142 (CA), 186H.

37  For a general discussion of different concepts of comity, see Dicey, §§1-008 to 1-017.

38  Buck v Attorney General [1965] Ch 745 (CA), 770D, per Diplock LJ: ‘As a member of the family of nations, the Government of the United Kingdom (of which this court forms part of the judicial branch) observes the rules of comity, videlicet, the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states and expects other states to adopt in relation to itself’; Treacy v Director of Public Prosecutions [1971] AC 537 (HL), 561F–562C.

39  M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 214–216; Oppenheim, pp 50–51.

40  The Parlement Belge (1879–1880) LR 5 PD 197 (CA), 214–215, 217; see also Al-Fayed v Al-Tajir [1988] QB 712 (CA), 730–731.

41  Luther v Sagor & Co [1921] 3 KB 532 (CA), 554–556; Buck v Attorney General [1965] Ch 745 (CA), 768E, per Harman LJ who held that the English courts had no jurisdiction to consider whether independence had been validly granted to Sierra Leone, which since independence had been a friendly sovereign state, on grounds of ‘international comity’; see also Diplock LJ at 770G.

42  State of Minnesota v Philip Morris Inc [1998] ILPr 170 (CA), 176.

43  The detailed development and consequences of the principles of comity in the case law on anti-suit injunctions is explored in Ch 4, Section K.

44  Barclays Bank Plc v Homan [1993] BCLC 680, 690; Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818 (CA), 827; Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 133H, 138G, 140A–B, F (requiring that the English court have a ‘sufficient interest’). See also the cases where the potential interference with comity which is inherent in service of proceedings out of the jurisdiction is relied on to justify the conclusion that the Court’s powers to permit service of proceedings out of the jurisdiction should be interpreted narrowly: Vitkovice Horni a Hutni Tzirstvo v Korner [1951] AC 869 (HL), 882; George Monro Ltd v American Cyanamid Corp [1944] KB 432 (CA), 437.

45  Barclays Bank Plc v Homan [1993] BCLC 680, 690, 692.

46  Thus comity imposes fewer restraints on English courts, for example, where the foreign court seeks to exercise exorbitant jurisdiction over matters which do not fall within its own natural sphere of influence: British Nylon Spinners Ltd v Imperial Chemical Industries Ltd [1953] Ch 19 (CA), 27, 28; and see Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), 894D–E, or in a way contrary to international law: see, by analogy, Kuwait Airways Corp v Iraqi Airways Corp [2002] 2 AC 883 (HL), §§24–29.

47  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 140D. In certain cases, comity has been invoked positively to support the grant of an injunction: OT Africa Line Ltd v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA), §32: ‘if the parties have actually agreed that a foreign court is to have sole jurisdiction over any dispute, the true role of comity is to ensure that the parties’ agreement is respected’.

48  Hilton v Guyot 159 US 113 (1895) (US Sup Ct), 163–165; Somportex Ltd v Philadelphia Chewing Gum Corp, 453 F 2d 435 (3d Cir 1971), 440; cert denied 405 US 1017 (1972).

49  See Ch 4.

50  Amchem Products Inc v British Columbia (Workers Compensation Board) [1993] 1 SCR 897 (SC Can), 913–914.

51  Midland Bank Plc v Laker Airways Ltd [1986] QB 689 (CA), 705D. See also Peter Prescott QC, sitting as a deputy, in R Griggs Group v Evans [2005] 1 Ch 153, 159H–160B: ‘In general, however, when our courts say that they intend to refrain from making a particular order because it would be a breach of international comity, they mean that, in their judgment, a foreign court would reasonably construe it as an invasion of the sovereignty of its country, and resent it accordingly. We do not mean to offend foreign courts, as by seeming to undermine their jurisdiction and authority, and expect a similar degree of self-imposed judicial restraint on their side. But how do we know where to draw the line? At times the line is tolerably clear, because it has been drawn in our own case law, or because it is demarcated by established concepts of international law. At other times the line is less clear.’

52  Love v Baker (1665) 1 Chan Cas 67, 22 ER 698, (1664–1665) Nels 103, 21 ER 801, also sub nom Lowe v Baker (1665) 2 Freem Chy 125, 22 ER 1101 (a claim for an injunction to restrain proceedings in the courts of Leghorn, now Livorno).

53  See Holdsworth, ‘A History of English Law’, (1903–1938), Vol 1, 459–464. It has been suggested that, ‘as between the Courts of Chancery and common law, no questions of comity were involved’: Barclays Bank Plc v Homan [1993] BCLC 680 (Hoffmann J), 687. That, however, is the statement of a Chancery lawyer. There is no denying that, in the sixteenth and seventeenth centuries, the common law courts considered that the grant of the common injunction was, in substance, a disregard of the ‘comity’ owed to them by the Court of Chancery.

54  In Beazley v Horizon Offshore Contractors Inc [2005] 1 Lloyds Rep IR 231, it was argued that the European Court of Justice’s decision in C-159/02, Turner v Grovit [2004] ECR I-3565 should lead the English courts to review their view that anti-suit injunctions were compatible with comity, but this was rejected: ‘The idea that the European Court of Justice has revealed “the emperor’s new clothes” of the common law is fanciful. In recent times the common law has had a punctilious regard for the position of affected jurisdictions’ (at §39).

55  Bushby v Munday (1821) 5 Madd 297, 56 ER 908, 913. In Amchem Products Inc v British Colombia (Workers Compensation Board) [1993] 1 SCR 897 (Can SC), 912, the approach taken in Bushby v Munday was viewed as ‘parochial’.

56  Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), 892C; and see the doubts expressed in Philip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73 (CA), §48.

57  See A Briggs, ‘No Interference with Foreign Court (1982) 31 ICLQ 189; T Hartley, ‘Comity and the Use of Anti-Suit Injunctions in International Litigation’ (1987) 35 AJCL 487, 506 (calling the personal logic ‘sophistry’); C Ambrose ‘Can Anti-Suit Injunctions Survive European Community Law’ (2003) ICLQ 401, 408 (calling it ‘superficially attractive’). See also C-159/02, Turner v Grovit [2004] ECR I-3565, AG §§32, 34.

58  See Lord Portarlington v Soulby (1834) 3 My & Ky 104, 40 ER 40, 41–42. For a modern decision, see Beazley v Horizon Offshore Contractors Inc [2005] 1 Lloyds Rep IR 231, §39. For academic defences of the personal logic, see Kennedy v Cassillis (1818) 2 Swans 313, 36 ER 635, 638 (where the injunction dissolved on the ground that it was sought against the Scottish court itself); D Tan ‘Enforcing International Arbitration Agreements in Federal Courts: Rethinking the Federal Court’s Remedial Powers’ 47 Virg J Int Law 545, 591–593, and M Lenenbach, ‘Anti-Suit Injunctions in England, Germany and the United States: Their Treatment under European Civil Procedure and the Hague Convention’ 20 Loy LA Int’L & Comp LJ 257 (1997–1998), 293–294. The personal logic of the injunction is discussed in more detail at Ch 3, Section E.

59  British Airways Board v Laker Airways Ltd [1985] AC 58 (HL), 95E; Philip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73 (CA), §48; Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 138G–H; and see Barclays Bank Plc v Homan [1993] BCLC 680, 686; Beazley v Horizon Offshore Contractors Inc [2005] 1 Lloyds Rep IR 231, §39. The US courts have recognized this from the beginning: Peck v Jeness 48 US (7 How) 612 (US Sup Ct), 625; China Trade v MV Choong 837 F 2d 33 (2nd Cir 1987), 35–36.

60  For example in Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL).

61  Arguments based on comity were advanced by the injunction defendant in West Tankers Inc v RAS Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 319 (HL) but Lord Hoffmann dismissed them by a curt reference to the first instance judge’s reasoning: at §8. However, Colman J had regarded the point as a matter of precedent, not principle, and had alluded to it only briefly: West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2005] 2 Lloyds Rep 257, §§51, 55. A comity challenge based on Turner v Grovit was mounted in Beazley v Horizon Offshore Contractors Inc [2005] 1 Lloyds Rep IR 231, but did not get far: see fn 54 above.

62  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL); Donohue v Armco Inc [2002] 1 Lloyds Rep 425 (HL); Turner v Grovit [2002] 1 WLR 107 (HL); West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL).

63  In The Front Comor, the House of Lords made clear that they viewed the anti-suit injunction as a valuable and legitimate part of the court’s armoury: West Tankers Inc v RAS Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL), §§21, 28–30, and gave short shrift to arguments that comity should preclude the grant of anti-suit injunctions: see fn 61 above.

64  Although the English courts cannot hold themselves up as models of perfection in terms of the length of litigation, there is no doubt that a litigant in some other jurisdictions can expect very extensive delays before even a jurisdiction challenge is determined. In the case of Italy, the tactical possibilities this affords have become known as the ‘Italian Torpedo’: M Franzosi, ‘Worldwide Patent Litigation and the Italian Torpedo’ [1997] 7 EIPR 382; T Hartley, ‘The European Union and the Systematic Dismantling of the Conflict of Laws’ [2005] ICLQ 813, 815–821. The European Court of Justice has refused to take any account whatsoever of this problem, ignoring the sensible advice of its Advocate General: Case C-116/02, Gasser GmbH v MISAT Srl [2003] ECR I-14693.

65  In Continental Bank v Aeakos [1994] 1 Lloyds Rep 505 (CA), 511–512, the evidence of Greek procedure was that it was impossible to make a jurisdictional challenge without filing an expensive defence to the action at the same time.

66  See Sir P Gross ‘Anti-Suit Injunctions and Arbitration’ [2005] LMCLQ 10, 24–25.

67  This can be a particular problem for international arbitration: ‘it is hardly reasonable to expect a claimant in the arbitral proceedings with little economic power to additionally defend himself in foreign proceedings at great expense’: P Schlosser ‘Anti-Suit Injunctions zur Unterstützung von internationalen Scheidsverfahren’ RIW 2006, 486, at 492.

68  R Raushenbush ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039, 1048–1049.

69  Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320 (Oberlandesgericht Düsseldorf), C-24/02, Marseilles Fret SA v Seatrano Shipping Co Ltd [2002] ECR I-3383 (Tribunal de Commerce de Marseille); Shifco Somali High Seas International Fishing Co v Davies (Tribunale di Latina, Italy, 29 May 2003) (an anti-suit injunction was an ‘evident and fraudulent violation of the convention rules’).

70  H van Houtte, ‘May Court Judgments that Disregard Arbitration Clauses and Awards be Enforced under the Brussels and Lugano Conventions?’ (1997) 13 Arbitration International 85, 91. The states of the USA generally refuse enforcement of each other’s anti-suit injunctions: J Phillips, ‘A Proposed Solution to the Puzzle of Anti-Suit Injunctions’ (2002) 69 U Chic L Rev 2007, 2015.

71  There would also, in theory, be a danger that in a dispute between A and B, the courts of state X might restrain party A from litigating on the merits before the courts of state Y, while the courts of state Y might restrain party B from litigating in the courts of state X. If this were to happen, the parties would find themselves stymied—no one would be able to commence or continue substantive proceedings on pain of punishment.

However, this is a relatively unlikely scenario that appears to be a rare scenario and appears to have occurred only once, and then only briefly, in the reported English cases: Amoco (UK) Exploration Co v British American Offshore Ltd [1999] 1 Lloyds Rep 772, 776. It is unlikely to recur, at least for long, unless at least one state’s courts, and probably both states’ courts, adopt an unjustifiably expansive approach to the grant of anti-suit injunctions. Even if both states’ courts were to conclude that the dispute should legitimately be heard before them, and that the other forum was relatively inappropriate, it would be unlikely that both courts would conclude that the other court was such an inappropriate forum that litigation before it would be vexatious and oppressive (this result illustrates why the granting of antisuit injunctions merely on the grounds that the other jurisdiction is an inappropriate forum is unsound: see Ch 4, Section I). In addition, most ‘second seised’ courts faced with such a situation would either not grant the injunction or attempt to find some way to resolve the clash.

72  For an example of an anti-anti-anti-suit injunction, see GE Francona Reinsurance Limited v CMM Trust No 1400 [2004] EWHC 2003, §10. In theory the iteration could continue; but in reality one does not tend to go further down the chain. Sufficiently broad drafting will ensure, for example, that an anti-anti-suit injunction is also in effect an ‘anti-anti-anti-antisuit injunction’.

73  Laker Airways Ltd, a British airline flying transatlantic flights, went into insolvency. Its liquidator commenced US anti-trust proceedings alleging a conspiracy by various British and European airlines to drive Laker out of business by predatory pricing. ‘Single forum’ anti-suit injunctions were granted to restrain the US proceedings at first instance and by the Court of Appeal at the application of two British airlines: British Airways Board v Laker Airways Ltd [1984] QB 142 (applying the since discredited approach based on forum non conveniens derived from Castanho v Brown & Root (UK) Ltd [1981] AC 557 (HL)). These injunctions were subsequently discharged on appeal by the House of Lords because Laker and the other airlines, by operating on both sides of the Atlantic, had voluntarily brought themselves within the scope of US domestic law including US anti-trust law, and therefore it was not ‘unconscionable’ or unjust for US anti-trust law to be applied to them: British Airways Board v Laker Airways Ltd [1985] AC 58 (HL), 84. Laker’s British banks, who had been sued as alleged co-conspirators, also applied and obtained anti-suit injunctions, which were upheld by the Court of Appeal. The House of Lords’ decision was distinguished because, in contrast to the airlines, the banks had never brought themselves within the legitimate scope of US anti-trust law: Midland Bank Plc v Laker Airways Ltd [1986] QB 689 (CA).

In the meanwhile, however, the US courts had reacted strongly to what was perceived as an unjustified interference with their jurisdiction. Anti-anti-suit injunctions were granted against other European airlines, including Sabena, which had not obtained anti-suit injunctions from the English courts but seemed likely to; and the English approach to antisuit injunctions was strongly criticised: Laker Airways v Pan Am World Airways 559 F Supp 1124, 1138 (DDC 1983), aff’d Laker Airways v Sabena, Belgian World Airlines 731 F 2d 909 (DC Cir 1984).

The Laker Airways imbroglio is discussed by R Raushenbush ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039 and T Hartley, ‘Comity and the Use of Anti-Suit Injunctions in International Litigation’ 35 AJCL 487 (1987).

74  For another example, see the conflict between the US and the Indonesian courts in the Pertamina litigation: Karaha Bodas Co LLC v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara 335 F 3d 357 (5th Cir, 2003); discussed in E Gaillard, ‘Il est interdit d’interdire: Réflexions sur l’utilisation des Anti-Suit Injunctions dans l’arbitrage commercial international’ (2004) Rev Arb 47, 56–57.

75  R Raushenbush ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039; see also See G Bermann, ‘The Use of Anti-Suit Injunctions in International Litigation’ Col J of Transnat Law (1990) 589, 630–631.

76  It is notable that in the Laker Airways case, the clash between the legal systems of England and the United States arose out of the grant of an anti-suit injunction which was later held on appeal by the House of Lords to have been illegitimate (see generally, fn 73 above).

77  T Hartley, ‘Anti-Suit Injunctions and the Brussels Convention’ (2000) 49 ICLQ 166, 169.

78  A Briggs, ‘Anti-Suit Injunctions and European Ideals’ (2004) 120 LQR 529, observes that ’it is well known that many continental lawyers have a peculiar hostility to the anti-suit injunction’. For court decisions, see Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320 (Oberlandesgericht Düsseldorf), §§14–19 (criticized in J Harris, ‘Restraint of Foreign Proceedings—the view from the other side of the fence’ [1997] CJQ 283, and reacted to in Philip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73); Ref Bruxelles, 18 December 1989, RW 1990–1991, 676; noted by H Born, M Fallon, JT 1992 438; Stolzenberg v Daimler Chrysler Canada Inc [2005] ILPr 24 (French Cour de Cassation), §4. For academic writing see H Gaudemet-Tallon, ‘France’ in J Fawcett (ed), Declining Jurisdiction in Private International Law (1995), 175 at 186–187; S Clavel, ‘Anti-Suit Injunctions et Arbitrage’ (2001) Rev Arb 669, 676–677, 701–706; A Nuyts, L’Exception de Forum non Conveniens’ (2003), esp. §§364–365; E Gaillard, ‘Il est interdit d’interdire: Réflexions sur l’utilisation des Anti-Suit Injunctions dans l’arbitrage commercial international’ (2004) Rev Arb 47; F Bachand, ‘The Uncitral Model Law’s Take on Anti-Suit Injunctions’, in Gaillard (2005), 87ff; P Bonassies, ‘L’entrée en vigeur du règlement communautaire n° 44-2001 du 22 décembre 2000 concernant la competence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale’ Revue Scapel, 2002, n° 2, 48–52, describing an anti-suit injunction to restrain proceedings in breach of an arbitration clause before the Tribunal de Commerce de Marseille as ‘une méfiance insupportable à l’égard de cette jurisdiction non-britannique’.

See also the discussion of the evidence of Belgian, French and Italian lawyers in OT Africa Line Ltd v Hijazy (The Kribi) (No 1) [2001] 1 Lloyds Rep 76, §§76–86, 95(5); Navigation Maritime Bulgare v Rustal Trading Ltd (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106, §§115–119, 121(5) (where the evidence of Professor Bonassies was that the French courts would regard an antisuit injunction as ‘a grossly offensive intrusion to their own functioning’); Evialis SA v SIAT [2003] 2 Lloyds Rep 377, §§52–58; West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2005] 2 Lloyds Rep 257, §§43–46.

However, it is not the case that all ‘civilian’ lawyers are adamantly opposed to anti-suit injunctions. For examples of those who think the remedy has its place, see ML Niboyet, ‘Le Principe de Confiance Mutuelle et Les Injonctions Anti-Suit’, in P de Vareilles-Sommières, Forum Shopping in the European Judicial Area (2007), 77; and A Nuyts, L’Exception de Forum Non Conveniens (2003), §370.

79  Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320, §§14, 16; F Bachand, ‘The Uncitral Model Law’s Take on Anti-Suit Injunctions’, in Gaillard (2005), 87ff, at pp 102–103; Rauscher, Europäisches Zivilprozessrecht Kommentar (2nd, edn), 501, §17c.

80  Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320, §§14, 17; F Bachand, ‘The Uncitral Model Law’s Take on Anti-Suit Injunctions’, in Gaillard (2005), 87ff, at pp 102–103; for a summary of this ‘continental perspective’, see H Muir Watt, ‘Injunctive Relief in the French Courts: A Case of Legal Borrowing’ [2003] CLJ 573.

81  Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320, §§15–16; Case C-159/02, Turner v Grovit [2004] ECR I-3565, AG §§32, 34.

82  For an illustration of this mindset, see the ECJ’s decision in C-281/02, Owusu v Jackson [2005] ECR I-1383; and see T Hartley, ‘Anti-Suit Injunctions and the Brussels Jurisdiction and Judgments Convention’ (2000) 49 ICLQ 166, 169–170.

83  See A Briggs, ‘The Impact of Recent Judgments of the European Court on English Procedural Law and Practice’, Zeitschrift für Schweizerisches Recht Revue de droit Suisse, 124 II 231 (2005) and see also Sir A Clarke, ‘The Differing Approach to Commercial Litigation in the European Court of Justice and the Courts of England and Wales’, Speech of 23 February 2006.

84  See D Tan ‘Anti-Suit Injunctions and the Vexing Problem of Comity’ (2005) 45 Virg J Int Law 283, 307–309, contending (in the context of the American case law) that ‘comity, the constraining factor in the enquiry, need only be considered after the equitable entitlement is established’.

85  At the risk of oversimplification, the ‘civil law’ approach, based on sovereignty, can be viewed as flowing from the inquisitorial concept of justice, under which it is the proper role and function of the court to seek out truth, and impose justice on the parties. In contrast, under the ‘common law’ approach, based on private justice, the court is merely a ‘referee’, whose function is to resolve justly a dispute between the parties which may properly be brought before it. From this perspective, the judicial sovereignty of the court to resolve cases before it is less important.

86  See Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 131H for commentary on the fundamental differences between the civil and common law approaches to jurisdiction.

87  Vide L Wittgenstein, Philosophical Investigations (2nd edn, 1958), Remark 217: ‘If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: “This is simply what I do”.’ Using an apt Chinese expression, Briggs has referred to the clash between civil law and common law perspectives as like ‘chickens talking to a duck; and if it is, it is pointless to say that one approach is right and the other is wrong’: A Briggs, ‘The Impact of Recent Judgments of the European Court on English Procedural Law and Practice’, Zeitschrift fur Schweizerisches Recht Revue de droit Suisse, 124 II 231 (2005).

88  In England, this is now an obligation imposed by rules of court: CPR 31.22. It used to be imposed by way of an implied undertaking treated as having been given by the party receiving disclosure: C Hollander QC, Documentary Evidence (9th edn, 2006), §21-01.

89  Bourns Inc v Raychem Corp (No 3) [1999] RPC 64, §§11, 15–20, 55 (Laddie J), 679–682 (CA); Bourns Inc v Raychem Corp (No 4) [2000] FSR 841, 845–846 (referring to earlier unreported judgments).

90  See C Hollander QC, Documentary Evidence (9th edn, 2006), §21.41; see eg Bourns Inc v Raychem Corp (No 2) [2000] FSR 841.

91  For an example of this occurring, see Medway v Doublelock Ltd [1978] 1 WLR 710 (injunction granted in respect of the abuse of confidential disclosed material in proceedings elsewhere in England).

92  R Raushenbush ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039, 1067–1070. In contrast, civil law opponents of anti-suit injunctions tend to conclude that anti-anti-suit injunctions are equally objectionable: T Rauscher, Europäisches Zivilprozessrecht Kommentar (2nd edn, 2006), p 122, §20f; E Gaillard, ‘Il est interdit d’interdire: Réflexions sur l’utilisation des Anti-Suit Injunctions dans l’arbitrage commercial international’ (2004) Rev Arb 47, 58–62.

93  Apple Corps Ltd v Apple Computer Inc [1992] RPC 70, 79; see also G Bermann, ‘The Use of Anti-Suit Injunctions in International Litigation’ Col J of Transnat Law (1990) 589, 620–623.

In contrast, it is more doubtful whether injunctions granted on the basis that the injunction defendant’s conduct in litigating abroad is vexatious or oppressive (or unconscionable) enforce any real underlying substantive right, or correlative personal obligation: see Ch 3. Further, even if as a matter of English Equity Law an underlying equitable obligation not to litigate abroad were identified, a foreign court could be forgiven if it were to view this ‘obligation’ as the expression of a conclusion that injunctive relief should be granted, rather than a genuine concrete personal obligation to which it should pay regard. In the absence of such a concrete personal obligation, the personal logic of the anti-suit injunction is more contestable. In Barclays Bank Plc v Homan [1993] BCLC 680, 686, Hoffmann J explained that ‘in theory the injunction merely operates in personam upon a person subject to the jurisdiction of the English court. There are cases, such as the enforcement by injunction of a contractual submission to the exclusive jurisdiction of the English court, in which this is a fair description of the proceedings. There are others where it is less realistic, as for example when the English court considers that the foreign proceedings would be unjust because the foreign court is asserting an excessive jurisdiction.’

94  The distinction between contractual and non-contractual anti-suit injunctions is accepted by some civilian writers. See H Muir-Watt, noting Turner v Grovit in Rev Crit DIP, 93(2), July–Sep 2004, 655, §4; P Schlosser ‘Anti-Suit Injunctions zur Unterstützung von internationalen Scheidsverfahren’ RIW 2006, 486, 490–492. S Clavel, ‘Anti-Suit Injunctions et Arbitrage’ (2001) Rev Arb 669, 674–675, 678–679 accepts that where an anti-suit injunction enforces a contractual obligation ‘l’irrégularité est moins flagrante’, and it may therefore be permissible. See also M Lenenbach, ‘Anti-Suit Injunctions in England, Germany and the United States: Their Treatment under European Civil Procedure and the Hague Convention’ 20 Loy LA Int’L & Comp LJ 257 (1997–1998), 290–292.

95  Western Electric Co Incorporated v Racal-Milgo Limited [1979] RPC 501, 511 (Whitford J), 518–519 (CA); Through Transport Mutual Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] 1 Lloyds Rep 67 (CA), §91; Walanpatrias Stiftung v Lehman Brothers International (Europe) [2006] EWHC 3034, §§52–56.

There are, however, examples where the English courts have objected to applications for foreign anti-suit injunctions (which had not yet been granted) which were perceived as illegitimate: General Star International Indemnity Ltd v Stirling Cooke Brown Reinsurance Brokers Ltd [2003] Lloyds Rep IR 719; Tonicstar Ltd v American Home Insurance Co [2005] 1 Lloyds Rep IR 32. It has been suggested that this demonstrates a degree of hypocrisy: see Briggs & Rees, §5.46; but this is not so, provided that the grant of an English anti-suit injunction in inverse circumstances would be viewed as contrary to principle.

96  See eg OT Africa Line Ltd v Magic Sportswear Corp [2007] 1 Lloyds Rep 85 (Can Fed Ct of Appeal), §§55, 75, 81–82 (responding to the anti-suit injunction granted in OT Africa Line Ltd v Magic Sportswear Corp [2005] 2 Lloyds Rep 170 (CA)).

97  The Brussels-Lugano regime is the paradigm case of such a ‘closed system’ of jurisdiction (OT Africa Lines Ltd v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA), §37), and we now know from C-159/02, Turner v Grovit [2004] ECR I-3565 that it does preclude the grant of anti-suit injunctions within its territorial and material scope. Resolution 1/2000 of the International Law Association, otherwise known as the Leuven/London principles, suggests that anti-suit injunctions should not be granted within closed systems of jurisdiction which define the original jurisdiction of the courts of the parties: §7.1.

It has been argued that the New York Convention also precludes the grant of anti-suit injunctions to enforce arbitration clauses as between contracting states, but this argument is unconvincing: see Ch 7, §7.10, fn 26. The New York Convention is, however, not a truly closed system as it does not regulate the assumption of jurisdiction. The Hague Convention on the Choice of Court (2005) will establish a partly controlled jurisdictional system if and when it comes into force. But it expressly preserves the ability of courts to grant ‘interim measures of protection’: see Art 7. Although this wording could be given a very literalistic reading to suggest that claims for final injunctions are not preserved, that would be an inappropriate way to read an international convention. It is clear from the Travaux Préparatoires that the Hague Convention was not intended to affect the power to grant anti-suit injunctions: see Hague Conference on Private International Law, Report of the Second Meeting of the Informal Working Group on the Judgments Project, January 6–9 2003, 6.

98  E Gaillard, ‘Il est interdit d’interdire: Réflexions sur l’utilisation des Anti-Suit Injunctions dans l’arbitrage commercial international’ (2004) Rev Arb 47, 51–52, observes with disapproval that ‘the core of the technique of the anti-suit injunction is to be found in the ambition to cause one’s own view of which jurisdiction is competent, and where appropriate of whether an arbitration agreement is valid or invalid, to prevail, over the views of any other jurisdiction, whether state court or arbitral tribunal, which could be seised or has been seised with the question’ (author’s translation).

99  Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), 895G–H.

101  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 138G–H.

102  Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA), 96; OT Africa Lines Ltd v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA), §§27, 32, 58–61, 73.

103  See H Muir-Watt, noting Turner v Grovit in Rev Crit DIP, 93(2), July–Sep 2004, 655, §4.

104  West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL), §§19–20. See S Males QC, ‘Comity and Anti-Suit Injunctions’ [1998] LMCLQ 543, 552.

105  Aggeliki Charis Compania Maritima SA (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA), 96; West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL), §§19–20, 32. See Sir P Gross ‘Anit-Suit Injunctions and Arbitration’ [2005] LMCLQ 10, 24–25.

106  Sir P Gross ‘Anti-Suit Injunctions and Arbitration’ [2005] LMCLQ 10, 24–25.

107  This problem can be called the ‘conflict of conflicts’. See generally Ch 8, §§8.18 to 8.24.

108  A Nuyts, ‘Les principes directeurs de l’Institute de Droit International sur le recours à la doctrine du forum non conveniens et aux anti-suit injunctions’ Revue Belge de Droit International 2003/2, 536, 556.

109  See eg West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2005] 2 Lloyds Rep 257, 262–263.

110  A Briggs, ‘Anti-Suit Injunctions in a Complex World’, in F Rose (ed), Lex Mercatoria (2000), pp 219, 238 argues that where it is controversial whether an exclusive jurisdiction clause is legally binding, there is ‘much to be said for the view that the foreign court is best placed to conduct such an evaluation’.

111  In Apple Corps Ltd v Apple Computer Inc [1992] RPC 70, 79, Hoffmann J referred to the ‘universal principle that until some good contrary reason has been shown, men should be held to their bargains’.

112  OT Africa Lines Ltd v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA), §§27, 32, 58–61, 73. A Briggs, ‘Anti-Suit Injunctions in a Complex World’, in F Rose (ed), Lex Mercatoria (2000), pp 219, 237, suggests that the mere fact that an exclusive forum clause is governed by English law is insufficient to mean that the English court should ‘claim the role as the exclusive enforcer of such a contractual term’, as the court whose jurisdiction is allegedly excluded is at least as legitimate an enforcer of the clause.

113  See Ch 8, §8.24.

114  In particular, the view that exclusive forum clauses are standard contractual obligations to be enforced in the same way as other contractual obligations is not shared by many civil law systems: A Briggs, ‘Anti-Suit Injunctions in a Complex World’, in F Rose (ed), Lex Mercatoria (2000), pp 219, 237.

115  See, in Canada, Amchem Products Inc v British Columbia (Workers’ Compensation Board) [1993] 1 SCR 897, 934. For arguments that comity should not significantly constrain the grant of anti-suit injunctions, see D Tan ‘Enforcing International Arbitration Agreements in Federal Courts: Rethinking the Federal Court’s Remedial Powers’ 47 Virg J Int Law 545, 591–597.

116  See Sir P Gross ‘Anti-Suit Injunctions and Arbitration’ [2005] LMCLQ 10, 24.

117  West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL); where the House of Lords has referred to the ECJ the question of whether the grant of Italian court proceedings in breach of arbitration clause is precluded by the principle of ‘mutual trust’ which emanates from the Brussels-Lugano regime: see Ch 12.

118  The root of the problem, in arbitration cases within the European Community, is that arbitration is excluded from the Rome Convention and the Rome I Regulation, and thus arbitration clauses are not subject to the ‘putative proper law’ rule for choice of law provided for in Art 8 of the Rome Convention and Article 10 of the Rome I Regulation. See by analogy XL Insurance Ltd v Owens Corning [2000] 2 Lloyds Rep 500 (where the US Court would apply the Federal Arbitration Act as the lex fori to override the agreed proper law of the contract). See also OT Africa Line Ltd v Hijazy (The Kribi) (No 1) [2001] 1 Lloyds Rep 76, where it seems that (at least according to the injunction defendant’s arguments in Belgium) if no injunction had been granted, the consequence would have been that Belgian contract law rather than English contract law would have applied to determine the validity of an express English exclusive jurisdiction clause expressly governed by English law: see at §§23, 73(3).

119  See the views of Hoffman J, at fn 93 above.

120  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 138G; the requirement of a sufficient interest is discussed further at Ch 4, §§4.41 to 4.44. In Masri v Consolidated Contractors International Company SAL (Re: Anti-Suit Injunction) [2008] EWCA Civ 625, §81, Lawrence Collins LJ suggested that to grant an anti-suit injunction in a case which has no relevant connection with England ‘may be a breach of international law’.

121  R Fentiman, ‘Anti-Suit Injunctions and The Brussels Convention’ [2000] CLR 45, 45–46, argues that the grant of anti-suit injunctions to restrain duplicative litigation that harasses a party to litigation before the English courts is reconcilable with comity, because the interference with the English litigation is ‘an issue uniquely within an English court’s province’.

122  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL), 138H–139A.

123  See the discussion in J Phillips, ‘A Proposed Solution to the Puzzle of Anti-Suit Injunctions’ (2002) 69 U Chic L Rev 2007.

124  R Raushenbush, ‘Anti-Suit Injunctions and International Comity’ (1985) 71 Va Law Rev 1039. A Lowenfeld, ‘Forum Shopping, Anti-Suit Injunctions, Negative Declarations, and Related Tools of International Litigation’ (1997) 91 AJIL 314, who is in general an opponent of anti-suit injunctions, accepts their necessity in cases of ‘fraud’, such as A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, [1997] 2 Lloyds Rep 183 (CA).

125  Armstrong v Armstrong [1892] P 98; South Carolina Insurance Co v Assurantie Maatschappij ‘De Seven Provincien’ NV [1987] 1 AC 24 (HL); Bankers Trust International Plc v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252; Omega Group Holdings Ltd v Kozeny [2002] CLC 132; Nokia Corp v Interdigital Technology Corp [2004] EWHC 2920 (Pat); Benfield Holdings Ltd v Richardson [2007] EWHC 171; and in Australia, see Allstate Life Insurance Co v Australian New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61 (Aus Fed Ct).

126  Bankers Trust International Plc v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 263B–F. Similarly, in Allstate Life Insurance Co v Australian New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61 (Aus Fed Ct) it appeared that the US court, far from objecting to the grant of injunctions by the Australian court, would positively welcome the exercise of control by the court with jurisdiction over the merits.

127  See A Bell, Forum Shipping and Venue in Transnational Litigation (2003), §§3.58 to 3.64.

128  This sort of concept has been deployed in relation to ‘single forum’ injunctions: Arab Monetary Fund v Hashim (No 6), Hoffmann J, 14 July 1992); General Star International Indemnity Ltd v Stirling Cooke Brown Reinsurance Brokers Ltd [2003] Lloyds Rep IR 719, 721–722. It is not yet the law in relation to alternative forum cases: see Airbus Industrie GIE v Patel [1999] 1 AC 119, 138G and Ch 4, §§4.41 to 4.42. However, there are emerging signs of its use in ‘alternative forum’ situations as well: Barclays Bank Plc v Homan [1993] BCLC 680, 687 per Hoffmann J: ‘there must be a good reason why the decision to stop the foreign proceedings should be made here rather there’.

129  In A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, 566, 574; [1997] 2 Lloyds Rep 183 (CA), 188—189, the Court relied instead on the fact that the injunction defendant had boasted of his ability to subvert the process of the courts of Sierra Leone.

130  Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), 894E–F: ‘Their Lordships refer, in particular, to the fact that litigants may now be encouraged to proceed in foreign jurisdictions, having no connection with the subject matter of the dispute, which exercise an exceptionally broad jurisdiction and which offer such great inducements, in particular greatly enhanced, even punitive, damages, that they may tempt litigants to pursue their remedies there.’

131  For the necessity of the anti-suit injunction in a world outside controlled closed systems of jurisdiction, see Airbus Industrie GIE v Patel [1999] 1 AC 199 (HL), 132G–133H; and see also Amchem Products Inc v British Columbia (Workers Compensation Board) [1993] 1 SCR 897 (SC Can), 914–915.

132  Airbus Industrie GIE v Patel [1999] 1 AC 119, 132C.

133  For a similar American position, see Judge Posner in Allendale Mutual Insurance Co v Bull Data Systems Incorporated (1993) 10 F 3d 425, 431–433: ‘When every practical consideration supports the injunction, it is reasonable to ask the opponent for some indication that the issuance of the injunction really would throw a monkey wrench into the foreign relations of the United States … The only concern with international comity is a purely theoretical one that ought not to trump a concrete and persuasive demonstration of harm to the applicant for the injunction, if it is denied, not offset by any harm to the opponent if it is granted.’

134  This conclusion was reached by the Oberlandesgericht Düsseldorf in Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320, §§17–18; and according to H Born, M Fallon, JT 1992 438, was also deployed by the court in Ref Bruxelles, 18 December 1989, RW 1990–1991, 676.

135  Art 6 provides ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ The European Court of Human Rights has held that a right of access to ‘a’ court is ‘inherent’ in Art 6: Golder v United Kingdom (1975) 1 EHRR 524, §§28, 35–36; and further that the individual has a right of effective access to ‘a’ court: Airey v Ireland (1979) 2 EHRR 305, §24, 28. Sometimes the phase used is a ‘right of access to court’: see eg TP and KM v UK (2002) 34 EHRR 23, §§96, 99. The Convention protects foreigners as well as citizens (or subjects), including foreigners from non-Convention states: Art 1; and it is also clear that Art 6 protects companies as well as natural persons: see eg Marpa Zeeland BV and Metal Welding BV v The Netherlands (2005) 40 EHRR 407.

136  The European Convention on Human Rights has been incorporated into English domestic law by the Human Rights Act 1998. Section 6 provides that it is unlawful for a court to act in a way which is incompatible with a Convention right; s 3 requires the court to interpret legislation compatibly with the Convention rights so far as possible, and s 4 enables the court to issue a declaration of incompatibility where legislation cannot be interpreted compatibly with the Convention rights. The combined effect of ss 3 and 6 of the 1998 Act is that the power to grant anti-suit injunctions contained in s 37(1) of the Supreme Court Act 1981 must be exercised compatibly with the Convention rights and that no anti-suit injunction may be granted which would be inconsistent with a Convention right.

137  Art 1 provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ The scope of the state’s jurisdiction is primarily territorial: Bankovic v Belgium (2001) 11 BHRC 435, §§59–61. However, the exercise of state authority by state officers outside the state’s territorial jurisdiction can engage its responsibility in certain situations: Freda v Italy (1980) 21 DR 250; App No 17392/90, Sanchez Ramirez v France (1996) 86-A DR 155; Bankovic v Belgium (2001) 11 BHRC 435, §§71, 73 (eg where the state has ‘effective control’ over the territory in question). It seems that the Convention generally applies to the extraterritorial exercise of jurisdiction by a national judge from within the territory of a contracting state: App Nos 7289/75 and 7349/76, X and Y v Switzerland (1977) 9 DR 57 (ECmHR) (The Swiss courts by agreement with Liechtenstein exercised jurisdiction over immigration into Liechtenstein; Switzerland was responsible under the Convention for their acts in doing so); App No 48205/99, Gentilhomme v France, 14 May 2002 (Art 6(1) applied without query to the excessive length of French administrative court procedures relating to Algerian residents and facts in Algeria); Al Skeini v Secretary of State for Defence [2008] 1 AC 153 (HL), §§109(4)(iii), 121.

138  The territorial scope of the protection given to the Convention rights by the Human Rights Act is congruent with the territorial scope of the protection offered by the Convention itself: Al Skeini v Secretary of State for Defence [2008] 1 AC 153 (HL), §§56–59 (Lord Rodger); §§133–151 (Lord Brown) (Baroness Hale and Lord Carswell agreed with Lords Rodger and Brown; Lord Bingham dissented).

139  See eg Golder v United Kingdom (1975) 1 EHRR 524, §§35–36; and Woś v Poland (2007) 45 EHRR 28, §98. An argument that Art 6 relates only to access to a state’s own courts gains some support from Vasilescu v Romania (1999) 28 EHRR 241, §43 (where it was said that in civil cases, Art 6(1) is merely a ‘lex specialis’ of Art 13, the right to an effective remedy), since it is difficult to conceive of Art 13 having any effect in respect of other states’ legal systems.

140  Soering v United Kingdom (1989) 11 EHRR 439, §§112–113; Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, §§84–91; App No 7155/01, Einhorn v France, 16 October 2001, §32 (where the extraterritorial operation of Art 6 was regarded as exceptional), App No 64599/01, Razaghi v Sweden, 11 March 2003; p 9; App No 17837/03, Tomic v United Kingdom, 14 October 2003, p 12, App No 24668/03, Olaechea Cahuas v Spain, 10 August 2006, §§59–62. Similarly, a court of a contracting state must refuse enforcement of a foreign judgment if the judgment is the result of a flagrant denial of justice in the foreign state: Drozd and Janousek v France and Spain (1992) EHRR 745, §101.

141  See Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, Joint Partly Dissenting Opinion of Judges Bratza, Bonello and Hedigan, §§14–15 (pp 537–538): ‘What constitutes a “flagrant” denial of justice has not been fully explained in the Court’s jurisprudence, but the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Art 6 if occurring within the Contracting State itself. As the Court has emphasised, Art 1 cannot be read as justifying a general principle to the effect that a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention (see Soering, cited above, pp. 33–34, § 86). In our view, what the word “flagrant” is intended to convey is a breach of the principles of fair trial guaranteed by Art 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Art.’ See also App No 7155/01, Einhorn v France, 16 October 2001, §34.

142  The main justification for the extension of extraterritorial effect articulated in Soering (in relation to Art 3, which was the main issue in the case) was that extradition in circumstances that would lead to a breach of Art 3 ‘would be contrary to the spirit and intendment of the Art’: at Soering v United Kingdom (1989) 11 EHRR 439, §88. It would be arguable that an extraterritorial order that unjustifiably restricted rights of access to a foreign court (or rights of access globally) would be contrary to the spirit and purpose of Art 6. This conclusion also makes sense when tested in hypothetical situations. Imagine that Poland passed a law banning any person from commencing proceedings in the German courts for restitution of property seised at the end of the Second World War, on pain of criminal punishment in Poland; this could severely restrict individuals’ rights of access to the courts. However, there would be no grounds for an application to be made against Germany, even though the restriction would bite in respect of rights of access to the German courts; the only state whose responsibility could be relevantly engaged would be Poland, and so concluding that the right of access to a court had no extraterritorial application would mean that there was no effective Convention remedy, and thus a potential ‘gap or vacuum in human rights protection’. Any gap or vacuum of that kind should not be permitted at least within the combined territories of the contracting states: see Bankovic v Belgium (2001) 11 BHRC 435, §80, and fn 143 below. See also the broad wording used in Issa v Turkey (2004) 41 EHRR 567, §71 (although note the doubts as to the soundness of that aspect of the European Court’s opinions expressed by the House of Lords in Al Skeini v Secretary of State for Defence [2008] 1 AC 153 (HL), §§72–80).

143  In Bankovic v Belgium (2001) 11 BHRC 435, §80, the Court noted that, when considering whether to extend the ‘jurisdiction’ of a state for the purposes of assessing its Convention responsibilities beyond its narrow territorial jurisdiction, it had only done so in cases where that extension was within the territory of the contracting states as a whole, because the Convention was designed to create a regional space of human rights protection and was not intended to be applied beyond the territories of the contracting states. See also Al Skeini v Secretary of State for Defence [2008] 1 AC 153 (HL), §§77–79. The concepts of ‘jurisdiction’, and the extraterritorial effects of the Convention rights, are not cleanly separable: see Bankovic v Belgium (2001) 11 BHRC 435, §68. It could therefore be argued that the responsibility of a state for the extraterritorial effect of the right of access to the court should not be interpreted to apply beyond the territories of the contracting states, within which, but not outside which, the right of access to the court should be protected.

144  In Ilascu v Moldova and Russia (2004) 40 EHRR 1030, §317, the European Court of Human Rights explained the Soering line of case law by saying: ‘A State’s responsibility may also be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction.’

145  McElhinney v Ireland (2002) 34 EHRR 13, §39; however, see the dissenting judgment of Judge Loicades (at p 341), suggesting that, in assessing whether the right of access to the court was infringed, it was relevant to consider only the possibilities of access to the courts of the contracting state whose responsibility was allegedly engaged.

146  Deploying the threshold test concepts used in the extradition cases: see §1.39 above.

147  The waiver must not be made under duress. See generally, App No 1197/61, X v Germany, (1962) Yearbook of the ECHR pp 88, 94–96 (ECmHR); Deweer v Belgium (1980) 2 EHRR 439, §49; App No 10881/84, R v Switzerland (1987) 51 DR 83 (ECmHR), 100–101; Bramelid and Malmstrom v Sweden (1986) 8 EHRR 116 (ECmHR), 177; App No 11960/86, Axelsson v Sweden, 13 July 1990 (‘a waiver must … be made in an unequivocal manner’), App No 28101/95, Nordström-Janzon v Netherlands, 27 November 1996; App No 46483/99; Pastore v Italy, 25 May 1999, and in England, Fiona Trust v Privalov [2007] 1 Lloyds Rep 391 (HL), §20. There are also suggestions in the case law that the waiver must ‘not run counter to any important public interest’: Axelsson v Sweden, 13 July 1990, but there is no case where an arbitration agreement has been held to run counter to any such interest. The Oberlandesgericht Düsseldorf did not refer to this jurisprudence in Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320.

148  OT Africa Line Ltd v Hijazy [2001] 1 Lloyds Rep 76, §§28(9), 41–44. This approach gains some support from the fact that the European Court of Human Rights has never yet considered that a requirement to use a particular court rather than any other within a national legal system could amount to a breach of the right of access to a court; in order to satisfy the right, all that has been necessary is that there is a court within the state in which the applicant’s legal claims can be fully and fairly heard: Alatulkkila v Finland (2006) 43 EHRR 34, §§41–43, 47–54 (applicants confined to review by the Finnish Supreme Administrative court; the question was whether the hearing in that court was sufficient). Aikens J’s analysis is also supported by H Born, M Fallon, JT 1992 438, criticising Ref Bruxelles, 18 December 1989, RW 1990–1991, 676. See however McElhinney v Ireland (2002) 34 EHRR 13, discussed at §1.39 above.

149  See eg McElhinney v Ireland (2002) 34 EHRR 13, §39, discussed above.

150  App No 727/60 (1960) Yearbook of the ECHR, 302, 309 (ECmHR) (restrictions on access to the court are permissible if they ‘do not deviate from their exclusive purpose of assuring justice according to law’); Golder v United Kingdom (1975) 1 EHRR 524, §38; Ashingdane v United Kingdom (1985) 7 EHRR 528, §§55–57; Stubbings v United Kingdom (1996) 23 EHRR 213, C§52 at 226–227, §48 at 233. The state has a ‘certain margin of appreciation’ in deciding what limitations can be imposed: Stubbings v United Kingdom (1996) 23 EHRR 213, §48 at 233; Woś v Poland (2007) 45 EHRR 28, §98.

151  See Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, §§59–67 (security for costs order); TP and KM v UK (2002) 34 EHRR 23, §102 (striking out); Z v United Kingdom (2001) 34 EHRR 97, §§95–100 (striking out); Reid v United Kingdom, 21 June 2001; Clunis v United Kingdom, 11 September 2001; Al Adsani v United Kingdom (2002) 34 EHRR 11, §§52–56 (state immunity) Carnduff v United Kingdom, 10 February 2004; Luordo v Italy (2005) 41 EHRR 26, §§83–88 (restrictions on bankrupt’s right to commence actions found disproportionate on the facts).

152  Golder v United Kingdom, Series B, No 16 (ECmHR), p 52, §95; H v United Kingdom 45 DR 281 (1985) (ECm HR), 283–285; Stone Court Shipping Co SA v Spain (2005) 40 EHRR 31, §§33–42.

153  ML Niboyet, ‘Le Principe de Confiance Mutuelle et Les Injonctions Anti-Suit’, in P de Vareilles-Sommières, Forum Shopping in the European Judicial Area (2007), 77, 85, rejects the argument that anti-suit injunctions to restrain vexatious conduct are contrary to Art 6.

154  The good management of litigation is a legitimate aim. Thus, in particular, the aim of avoiding an appellate court’s list being overloaded is legitimate: García Mandibaro v Spain (2002) 34 EHRR 6, §38.

155  It is notable that in Re the Enforcement of an English Anti-Suit Injunction [1997] ILPr 320, the German injunction defendants were consumers, which was an important part of the reasons which led the English court to conclude that there was no arbitration clause binding on them, and therefore to discharge the injunctions: see Philip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73.

156  This is, of course, subject to the resolution of the threshold difficulties discussed previously in relation to extraterritorial effect.

157  See Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), 892A, 894G, 896G–H. The tests for anti-suit injunctions in general are explored in Ch 4.

158  This is a permissible limitation on the right of access to a court: see generally §1.43 above.

159  Oppenheim, 385–386; FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964-I) 111 Hague Recueil des Cours, 1, 26–28. Lotus Case PCIJ, Series A, No 10, p 18; see also Brownlie, Principles of Public International Law (6th edn, 2003), pp 297–298. The principle of territoriality is not however an absolute principle: Lotus Case PCIJ, Series A, No 10, 20.

It is an inevitable consequence of this that no injunction could be granted against the foreign court itself; and it also follows from this (and practical reality) that the English court’s powers to punish for contempt of court cannot be exercised within the foreign state: see FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Hague Recueil des Cours 1, 129.

160  FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Hague Recueil des Cours 1, 43–51, describing a rigid approach based on territoriality as ‘procrustean’, and propounding a doctrine based on ‘closeness of connection’.

161  M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 176.

162  M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 177.

163  ‘International law does not impose hard and fast rules on States delimiting spheres of international jurisdiction … it does, however, postulate the existence of limits … Sir G Fitzmaurice, in Case Concerning Barcelona Traction, Light and Power Ltd, ICJ Reports 1970, p 105, §70 (see also The Lotus Case PCIJ, Series A, No 10, p 20). In The Lotus Case at p 20, the PCIJ suggested that international law did not contain ‘a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory’ and that ‘far from laying down a general prohibition to the effect that States may not extend the application of their own laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide margin of discretion which is only limited in certain cases by prohibitive rules’. This decision is doctrinally heterodox, in so far as it suggests that states have a discretion (see FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Hague Recueil des Cours 1, 34–36; and G Triggs, International Law: Contemporary Practice and Principles (2006), §7.10) but it does reflect the point that states have considerable freedom in the exercise of extraterritorial jurisdiction at the current stage of development of public international law. M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 170 observes that ‘when one examines the practice of states … one finds that states claim jurisdiction over all sorts of claim and parties having no real connection with them and that this practice has seldom if ever given rise to diplomatic problems’.

164  Oppenheim, pp 457–458, 462, 467–468. Another phrasing is a ‘direct and substantial connection between the state exercising jurisdiction and the matter in relation to which jurisdiction is exercised’. See also FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964-I) 111 Hague Recueil des Cours 1, pp 43–51, 78–81, and ‘The Doctrine of International Jurisdiction’ (1984-III) 186 Hague Recueil des Cours, 29, 31, 67. However, for an even more liberal approach, see M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 176–177.

Public international law draws a distinction between the exercise of jurisdiction over citizens abroad and over non-citizens abroad. The nationality of the injunction defendant was treated as a key factor in the earlier English case law: see Carron Iron Co v Maclaren (1855) 5 HLC 439, 442; Re Distin (1871) 24 LT 197; Re Chapman (1873) LR 15 Eq 75; Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA), 152–153, 154–155. The modern English law of anti-suit injunction does not cleave to such a bright line, but citizenship, residence and domicile of the injunction defendant (and the injunction claimant) remain relevant factors in the assessment, within the modern criterion of comity, of whether the English court has a sufficient connection with the matter in question for an injunction to be granted: see eg General Star International Indemnity Ltd v Stirling Cooke Brown Reinsurance Brokers Ltd [2003] Lloyds Rep IR 719, 722. This approach is probably consistent with public international law: see FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964-I) 111 Hague Recueil des Cours 1, pp 149–150, accepting the legitimacy of the grant of anti-suit injunctions in certain cases against non-residents or non-nationals.

165  Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL).

166  See also I Brownlie, Principles of Public International Law (6th edn 2003), p 28.

167  Although there have been protests by foreign courts and writers (see §1.21 above), there appear not to have been any diplomatic protests by foreign states at the international level.

168  M Lenenbach, ‘Anti-Suit Injunctions in England, Germany and the United States: Their Treatment under European Civil Procedure and the Hague Convention’ 20 Loy LA Int’L & Comp LJ 257 (1997–1998), 294. For state practice and international civil jurisdiction in general, see M Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 66 BYBIL 145, 177; The Lotus Case, PCIJ, Series A, No 10, pp 23, 29.

169  See §§1.15 to 1.16 above.

170  Bushby v Munday (1821) 5 Madd 297, 56 ER 908.

171  West Tankers Inc v RAS Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL), §8, referring to West Tankers Inc v Ras Riunione Adriatica di Sicurta (The Front Comor) [2005] 2 Lloyds Rep 257, §§53–58. See further on this issue, Ch 7, §7.10.

172  International Law Association, Bruges Session 2003, Second Commission, 2.9.2003 (Rapporteurs: Sir L Collins and G Droz), §5: ‘Courts which grant anti-suit injunctions should be sensitive to the demands of comity, and in particular should refrain from granting such injunctions in cases other than (a) a breach of a choice of court agreement or arbitration agreement; (b) unreasonable or oppressive conduct by a plaintiff in a foreign jurisdiction; or (c) the protection of their own jurisdiction in matters such as the administration of estates and insolvency.’ For discussion, see A Nuyts, ‘Les principes directeurs de l’Institute de Droit International sur le recours à la doctrine du forum non conveniens et aux anti-suit injunctions’ Revue Belge de Droit International 2003/2, 536.

However, Resolution 1/2000 of the International Law Association, (otherwise known as the ‘Leuven/London principles’) had previously been in slightly more restricted terms, less influenced by the common law: at §7 it suggested that contractual anti-suit injunctions were permissible if a jurisdiction clause had been ‘manifestly’ breached, but otherwise that anti-suit injunctions should only be granted if the foreign court had not itself respected the jurisdictional principles outlined in the Leuven/London principles.

173  See Art 38(1) of the Statute of the International Court of Justice.

174  See eg FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964-I) 111 Hague Recueil des Cours 1, 149–150, accepting the legitimacy of the English approach in ‘alternative forum’ cases, and specifically approving of the decision in Royal Exchange Assurance v Compania Naviera Santi SA (The Tropaioforos) [1962] 1 Lloyds Rep 410: ‘the principle upon which these English cases rest is sound and also highly significant from the point of view of the doctrine of international jurisdiction and … the cases which illustrate it are valuable examples of the test of closeness of connection and its advantages over the test of territory’; and FA Mann ‘The Doctrine of International Jurisdiction’ (1984-III) 186 Hague Recueil des Cours 19, 47–48. P Schlosser, ‘Anti Suit Injunctions in International Arbitration’ RIW 2006, 486, 490–491 concludes that there is no basis in public international law for assertions that anti-suit injunctions are prohibited.

Judge Stephen Schwebel has argued that injunctions to restrain arbitrations abroad can amount to a ‘denial of justice’, because it prevents a party from proceeding before the forum where he is entitled to obtain justice: S Schwebel ‘Anti-Suit Injunctions in International Arbitration: An Overview’, in Gaillard (2005), pp 5, 12–13. However, this contention is somewhat circular: it only has force if an injunction is granted to restrain a party from proceeding with valid arbitration proceedings; it does not follow that there is any denial of justice if a court has concluded, for example, that there is no valid arbitration agreement and grants an injunction on that basis.

175  See eg S Clavel, ‘Anti-Suit Injunctions et Arbitrage’ (2001) Rev Arb 669, 677.