19.01  Singapore law has a close relationship with English law that persists today.¹

19.02  The Singapore law on anti-suit injunctions follows the broad contours of English law² and the jurisprudence of the Privy Council, with both the Singapore High Court and the Singapore Court of Appeal contributing to its development. There has been a steady stream of claims and applications for such injunctions since the Singapore courts first had the occasion to consider the question in 1993.³

19.03  We consider the case law as it has developed in Singapore below. References to the High Court and to the Court of Appeal are to the Singapore courts. We do not seek to capture every aspect of Singapore law on anti-suit injunctions, for which reference can be made to other works on Singapore law, but only to those issues specific to anti-suit injunctions.⁴

19.04  Leaving aside the context of injunctions to protect arbitration, permanent and interim anti-suit injunctions are granted in Singapore under the broad powers conferred on the High Court by section 18(2) and para 14 of Schedule 1 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (the ‘SCJA’) to grant ‘all reliefs and remedies at law and in equity’, and section 4(10) of the Civil Law Act (Cap 43, 1999 Rev Ed) (the ‘CLA’).⁵ The best view seems to be that permanent anti-suit injunctions are granted under para 14 of Schedule 1 SJCA; and interim anti-suit injunctions are granted under section 4(10) CLA. These powers are not qualified by the Hague Convention on the Choice of Court (see section H, ‘The Hague Convention on the Choice of Court’).

19.05  The powers in section 210(10) of the Singapore Companies Act (Cap 50, 2006 Rev Ed) to restrain court proceedings during consideration of schemes of arrangement are territorially confined and do not give a power to restrain foreign proceedings abroad.⁶ However, in 2017, new powers were introduced in section 211B–C of the Act, enabling the Singapore courts to impose a ‘moratorium’ during considerations of schemes of arrangement or compromises with creditors. These powers in effect amount to a power to grant anti-suit injunctions, as the High Court recognized in IM Skaugen.⁷ They are not territorially limited in the same way as section 210(10), and permit the restraint of specified court or arbitration (p. 425) proceedings abroad, provided that the respondent is in Singapore or within the territorial jurisdiction of the Singapore courts.⁸

19.06  Although the power to grant anti-suit injunctions is exercised under statute, it is, like that of its English counterparts, based upon equity, both historically and in terms of the nature of the principles engaged.⁹

19.07  With one exception, it does not appear to have been suggested that the power derives from the High Court’s inherent jurisdiction to protect its own processes.¹⁰

19.08  The one exception is Pacific Andes, where an injunction was sought to restrain proceedings abroad in order to protect a Singapore scheme of arrangement. Kannan Ramesh JC concluded that no such injunction should be granted. In the course of doing so he discussed the accepted category of injunctions to protect Singapore liquidation or administration proceedings by restraining foreign proceedings, which he described as based on the inherent jurisdiction. However, in the context of the issues he had to describe, the ‘inherent jurisdiction’ did not need to mean anything more than the High Court’s basic general power in equity and under para 14 of Schedule 1 SCJA and section 4(10) CLA to grant such injunctions. He needed only to contrast the court’s basic powers with the specific power in section 210(10) of the Companies Act, which he held could not apply. He was not considering, and it seems there had been no submissions made to him about, the difference between that basic jurisdiction and the ‘inherent jurisdiction’ properly so called. Indeed, his key reasoning was that such injunctions were grounded in equity. It is submitted, therefore, that Pacific Andes is not clear authority to ground anti-suit injunctions in the inherent jurisdiction properly so called. In any event, it is unnecessary, and simplest not to do so, as the powers in equity and under statute are sufficient.¹¹

19.09  An interim anti-suit injunction, sought on a non-contractual alternative forum basis to protect existing proceedings, may be sought by an application in existing proceedings without a fresh claim for final anti-suit relief.¹²

19.10  Permanent anti-suit injunctions in support of arbitrations with a seat in Singapore are granted under section 18(2) and para 14 of Schedule 1 of the SCJA, and not under section 12(A) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the ‘IAA’).¹³

19.11  On the current case law, interim anti-suit injunctions in support of arbitrations with a seat in Singapore may be granted under section 12(A) IAA.¹⁴

19.12  There is as yet no clear decision on whether in cases of interim anti-suit injunctions to support arbitration, section 12(A) is exhaustive of the court’s powers and can be used exclusively. But the wider case law, including that dealing with the previous provision, suggests that section 12(A) is exhaustive of the court’s powers to grant interim injunctions in support of arbitration in general.¹⁵ If so, and if this means that section 4(10) CLA cannot be used to ground interim anti-suit injunctions in support of arbitration independent of section 12(a), this creates a problem. Anti-suit injunctions are not well suited to the constraints of section 12(A), which imposes unnecessary restrictions, such as a need for urgency, or the consent of the Tribunal, or proof that the Tribunal is unable to act effectively.

19.13  In English law, this problem has been dealt with by the conclusion of the Supreme Court in Ust-Kamenogorsk that anti-suit injunctions in support of arbitration fall outside the corresponding section 44 of the English Arbitration Act 1996 altogether and so are instead governed by section 37(1) of the English Senior Courts Act 1981. The Supreme Court’s logic was that an anti-suit injunction was not ‘for the purposes of’ or ‘in relation to’ arbitration proceedings, but instead sought to enforce the negative obligation in the arbitration agreement not to litigate.¹⁶ This logic, if accepted in Singapore, would suggest that section 4(10) CLA should be the relevant statutory basis for interim injunctions in support of arbitration, and that section 12(A) IAA should not cover anti-suit injunctions at all. However, this approach has not yet been taken in the Singapore case law, which regards section 12(A) as applicable at least to interim anti-suit injunctions in support of arbitration¹⁷ and so it seems, by implication, exhaustive in that regard.

(p. 427) 19.14  If the Singapore case law continues to house anti-suit injunctions in support of arbitration under section 12(A), then it seems likely that the Singapore courts will interpret the conditions of section 12(A) flexibly for anti-suit injunctions.¹⁸ Thus, the right to rely on an arbitration clause has been interpreted as an ‘asset’, enabling an injunction to be granted under section 12(A) in cases of urgency without the consent of the other party (see s 12(A)(4)).¹⁹ The English case law has, where necessary, interpreted the requirement of ‘urgency’ in section 12(A)(4) flexibly to permit the grant of anti-suit injunctions where required: urgency is constituted by the need to prevent the foreign proceedings going further.²⁰ Similarly, it seems likely that the Singapore courts will interpret the requirement in section 12(A)(6) that the Tribunal must be unable to act effectively to permit anti-suit inunctions in most cases, on the basis that the court’s coercive powers of enforcement are required.²¹ Certainly, there is no sign in the case law of any hesitation in granting interim anti-suit injunctions in support of arbitration, as we discuss under section E, ‘Contractual Injunctions’ below.

19.15  The power under section 12(A) of the IAA also (on the current case law) confers a power to grant an interim anti-suit injunction to protect an arbitration with a foreign seat,²² and the powers under para 14 of Sch 1 of the SCJA also probably include a power to grant a permanent anti-suit injunction to protect an arbitration with a foreign seat.²³ The question of whether and if so when it is sound in principle to do so is a separate matter, and discussed at section F, ‘Arbitration’ below.

19.16  The power to grant anti-suit injunctions in support of arbitration is not precluded by Article 5 of UNCITRAL Model Law on arbitration, which is in force in Singapore pursuant to section 3 IAA. Article 5 is intended to prevent unnecessary court intervention in the arbitral process and does not apply to anti-suit injunctions.²⁴

19.17  The analytical framework for the High Court’s determination of an anti-suit injunction application has been derived principally from the English and Privy Council authorities.

(p. 428) 19.18  When the Court of Appeal came to consider the tests for anti-suit injunctions under Singapore law for the first time in Widjaya (an undefended appeal), it described the law governing anti-suit injunctions as ‘well-settled’ on the basis of those authorities.²⁵

19.19  The Court of Appeal in Widjaya recited four enumerated principles set out in Lord Goff’s speech in the Privy Council’s decision in Aérospatiale (an appeal from Brunei), namely:²⁶

These propositions have been repeatedly restated in the subsequent Singapore case law. They were recently re-iterated by the Court of Appeal in Sun Travel v Hilton International,²⁸ together with the further propositions in Kirkham v Trane, to which we turn in para 19.21.

19.20  The Court of Appeal in Widjaya also adopted Aérospatiale generally, and in particular the key passages of Aérospatiale in which we see the following propositions (numbering added):

19.21  For a conventional alternative forum case like that before it, and leaving to one side qualifications which are principally relevant in less typical cases, those propositions led the Court of Appeal in Widjaya to focus for the heart of its analysis on the logic that ‘If it is the case that the court in Singapore is the natural forum for the determination of the dispute, an injunction should only be granted if the pursuit of [foreign] proceedings … would be vexatious or oppressive and, in this connection, account must be taken of any injustice [to either party].’³¹ But it would be wrong to regard this as a statement of rigid necessary conditions. Instead, as Andrew Ang J said in Regalindo, ‘it is well settled that the court’s jurisdiction to restrain foreign proceedings is exercised on the basis of the “ends of justice” and that there are several distinct and discrete grounds on which the court could grant an anti-suit injunction’.³² This is also the approach since adopted by the Court of Appeal in Kirkham v Trane.³³

19.22  The Singapore case law also makes repeatedly clear (just as Lord Goff did in Aérospatiale and later in Airbus v Patel³⁴) that (ix) international comity is a central consideration, and that if an injunction is in tension with comity, this may lead to be being refused.³⁵

19.23  While the subsequent Singapore cases³⁶ have not always articulated propositions (v)–(ix) above in a convenient list of standard principles, they represent Singapore law; the Singapore courts have not intended to do anything different than adopt the essence of Lord Goff’s approach in Aérospatiale. In many subsequent cases the Singapore courts have referred directly to Aérospatiale,³⁷ or to English textbook summaries of English law.³⁸ Recently, they have also adopted the law as set out in the Privy Council’s decision in Shell v Krys (an appeal from the British Virgin Islands), which itself applies English law principles as representative of the general common law in this internationally minded field.³⁹

(p. 430) 19.24  Since, like any injunction, the anti-suit is a discretionary equitable remedy,⁴⁰ it can be refused in the court’s discretion, which will be influenced by factors such as ‘unclean hands’ and delay. This discretion can, however, be viewed as encapsulated within the test of ‘ends of justice’.⁴¹

19.25  In the more recent cases, the Singapore courts have also identified the following factors,⁴² to be considered in the round,⁴³ as relevant in assessing whether it serves the ends of justice—or is in ‘the interests of justice’⁴⁴—to grant the injunction. These can be called the Kirkham list of factors, following the case of that name:

1. (a)  whether the defendant is amenable to the jurisdiction of the Singapore court;

2. (b)  whether Singapore is the natural forum for the resolution of the dispute between the parties;

3. (c)  whether the foreign proceedings are vexatious or oppressive to the plaintiff if they are allowed to continue;

4. (d)  whether an anti-suit injunction would cause any injustice to the defendant by depriving the defendant of legitimate juridical advantages sought in the foreign proceedings; and

5. (e)  whether the commencement of the foreign proceedings is in breach of any agreement between the parties.

19.26  In the recent Court of Appeal decision in Sun Travel v Hilton International, these Kirkham factors were recited after the Widjaya conditions.⁴⁵

19.27  It will be seen that Kirkham factors (a)–(d) are consistent with, and indeed flow out of the principles already identified above from Lord Goff’s judgment in Aérospatiale, while the relevance of factor (e), in contractual cases, is entirely consistent with Aérospatiale. The phrasing of them being factors as opposed to conditions has the advantage of making clear that Lord Goff’s principles set out at (v)–(vii) in para 19.20 have not been calcified into supposed necessary conditions, when that is not how they were intended. They are factors that need to be considered ‘in the round’.⁴⁶

19.28  The above Widjaya and Kirkham sets of principles essentially follow the ‘ends of justice/vexation or oppression’ approach adopted by Lord Goff in Aérospatiale, rather than the (p. 431) ‘unconscionability’ phrasing sometimes used in the English case law, which is derived from Lord Hobhouse’s language.⁴⁷ The language of unconscionability has also been used in the Singapore case law from time to time,⁴⁸ and could therefore, be used as an alternative touchstone, in place of vexation and oppression, within the overall framework of the ends of justice.

19.29  The Singapore Court of Appeal has not needed to resolve the difference between those two approaches; but in the one case where the conflict between the two ways of framing the test has been squarely confronted, Choo Han Teck J (adopting the analysis in the first edition of this work⁴⁹) concluded that Lord Goff’s approach is to be preferred.⁵⁰

19.30  Importantly, the Widjaya and Kirkham summaries addressed above do not as yet distinctly address the established availability of non-contractual anti-suit injunctions on grounds independent of vexation and oppression, although within the overall requirement of ‘the ends of justice’ (or the ‘interests of justice’). While vexation or oppression is the principal intermediate basis used within and under ‘the ends of justice’, and encapsulates most of the Singapore case law, there are other available bases at the same conceptual level that have been acknowledged in the Singapore case law,⁵¹ which has followed the English case law in this regard.

19.31  Thus, (a) independent of vexation or oppression, an injunction can be granted where this is necessary to protect the processes, jurisdiction and judgments of the Singapore court;⁵² (b) injunctions have been granted where the foreign litigation amounts to an abuse of process;⁵³ (c) injunctions may also be granted to protect the injunction claimant’s legal or equitable rights, even outside the simple case of contractual jurisdiction clauses.⁵⁴ Further, (d) there is some limited support in the case law for the proposition that injunctions may be granted to give effect to Singapore public policy.⁵⁵ (p. 432) (These propositions can be regarded as expansions, by way of alternative grounds to vexation and oppression, to proposition (vii) in para 19.20 above.)

19.32  A strong recent example of points (a) and (b) is the decision in Pacific Andes⁵⁶ where the High Court, following the Privy Council’s decision in Shell v Krys, stated that where there were Singapore insolvency proceedings and competing foreign proceedings, an anti-suit injunction could be granted in order to protect the equitable right to a fair distribution in insolvency, and also in order to protect the insolvency jurisdiction of the Singapore courts.

19.33  Separately, a different and more rigorous test is appropriate in contractual situations, and we return to this at section E, ‘Contractual Injunctions’.

19.34  Consequently, the Widjaya and Kirkham summaries identify the central features of Singapore law on anti-suit injunctions, and are, read together, a convenient starting point in most cases. Nevertheless, it is submitted that they are not comprehensive statements of Singapore law outside the central case of non-contractual injunctions to restrain vexatious or oppressive conduct. Singapore law on anti-suit injunctions goes wider. It includes the further propositions identified in para 19.31, and it is respectfully submitted that it can also be summarized, on a broader basis, by the synthesis of English law put forward in Ch 4, para 4.05.

19.35  Indeed, there is good reason to expect that Singapore law will develop along similar lines to the general English law on the tests for anti-suit injunctions, as and when it becomes necessary to explore less central situations in more detail, although the Singapore courts will no doubt add their own contributions to the jurisprudence. As yet, no significant difference of principle has been identified between English and Singapore law, with the possible exception of whether Singapore law will dispense with the inclusion of unconscionability in the test (see para 19.28 above).

(p. 433) 19.36  The Singapore courts do, however, have the significant advantage that they are unconstrained by the Brussels–Lugano regime and therefore face no artificial restrictions on the grant of injunctions to restrain proceedings in Europe.

19.37  We now turn to consider some key aspects of the main principles identified above, as developed in the Singapore case law.

19.38  The injunction defendant must be amenable to the jurisdiction of the Singapore court. However, this criterion will be satisfied if the court has in personam jurisdiction over the defendant, either by way of valid service, or submission to the court’s jurisdiction.⁵⁷ While there are comments in the case law which have suggested that the criterion of amenability means, additionally, that the injunction must be an effective remedy,⁵⁸ the developing case law has made clear that amenability does not mean that the injunction defendant must have a presence or assets in the jurisdiction which means that an injunction can be enforced against him in practice; the Singapore courts can, and in appropriate cases will, grant an injunction even where its order may be ineffective in practice and will not contemplate that its order will be disobeyed.⁵⁹ In this regard, the development of Singapore law has matched and anticipated the Privy Council’s recent decision in Shell v Krys.⁶⁰

19.39  In some Singapore cases, the criterion of Singapore being the natural forum for the litigation has been stated to be a necessary condition for the grant of an injunction.⁶¹ However, it is respectfully submitted that as an unqualified proposition this would be wrong. It is not what Aérospatiale says—Lord Goff qualified his statements there on natural forum with the words ‘in general’; and watered down any requirement still further in Airbus v Patel. Nor does it seem that an unqualified doctrine has been adopted by the Singapore courts. So, for example, in Evergreen, Belinda Ang Saw Ean J applied Aérospatiale as requiring natural (p. 434) forum only as a ‘general rule’, but not an ‘invariable one’.⁶² Numerous other cases adopting the Kirkham factors have regarded natural forum as an important factor, but not a necessary condition.⁶³ It is a factor among others to be considered ‘in the round’.⁶⁴

19.40  This more nuanced position is the right approach in principle. A showing of natural forum remains a central factor in conventional alternative forum cases; if Singapore is not the natural forum, then in such cases it is likely to be difficult to show that the other litigation is vexatious and oppressive or that the grant of an injunction would be consistent with comity. But in other types of situation, requiring that Singapore be the natural forum for the litigation would be either inappropriate, or something that can be deemed to be the case without any independent showing of natural forum by reference to the connections of the parties. In particular, where a single forum injunction is sought, Singapore will never be the natural forum for the issues in play in the foreign litigation.⁶⁵ Further, if the injunction is granted to protect a Singapore (or foreign) arbitration, the Singapore courts have a sufficient connection to grant the injunction, even though they may well not be otherwise the natural forum in terms of connections to the underlying facts. Similarly, where an injunction is necessary to protect the jurisdiction, processes, and judgments of the Singapore court, it should be granted irrespective of whether the Singapore court is the natural forum for the litigation; the Singapore court is self-evidently the right, or natural court to protect itself and its processes.⁶⁶

19.41  When assessing the natural forum for the litigation in a conventional way, the court will seek to identify the forum with which the dispute has the most real and substantial connection. This is not a mechanical process; instead, the court will take into account a multitude of factors.⁶⁷ The fact that Singapore proceedings are well advanced is a factor which may mean that Singapore is, or has become, the natural forum.⁶⁸

19.42  The criterion of vexation or oppression, referred to in Widjaya, has sometimes been stated as being, or summarized as if it were, a necessary condition of the grant of an injunction.⁶⁹ (p. 435) But that would not be a correct reading of Aérospatiale, under which vexation or oppression is only required ‘in general’. Vexation or oppression is the most centrally relevant criterion to whether an injunction is in the interests of justice; but not the only possible springboard⁷⁰—for example, as discussed above, under Aérospatiale injunctions can also be granted where necessary to protect the processes, jurisdiction, and judgments of the local courts.⁷¹ Nor does any more rigid rule seem to be the right reading of Singapore law. In the subsequent Singapore cases, and in particular those applying Kirkham, there are numerous examples of the Singapore courts reflecting the more nuanced approach to vexation and oppression under which it is not a necessary condition,⁷² but instead, again, is a factor to be considered with others ‘in the round’.⁷³

19.43  The circumstances in which vexation or oppression will arise cannot exhaustively defined: every case will turn on its own facts.⁷⁴ Factual findings which have supported findings of vexation or oppression include where the foreign proceedings: (a) were instituted in bad faith or an improper purpose or for no good reason;⁷⁵ (b) are bound to fail;⁷⁶ (c) will cause extreme inconvenience;⁷⁷ or (d) amount to an attack on the plaintiff’s legal rights.⁷⁸

19.44  In addition, vexation or oppression can be made good, (e), where foreign proceedings are duplicative of Singapore proceedings to a vexatious or oppressive extent.⁷⁹ But, importantly, there is no presumption that a multiplicity of proceedings is vexatious or oppressive per se. Something additional is required to make the duplication vexatious.⁸⁰ In this regard, the Singapore courts have adopted the remark in the first edition of this work that ‘the greater the positive and voluntary involvement of the injunction respondent in the local proceedings, and the longer the local suit has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction.’⁸¹

(p. 436) 19.45  If a claimant pursues parallel proceedings in Singapore or abroad, he may be forced to elect to pursue one claim or the other.⁸² If he elects to pursue the foreign action and to stay or discontinue the Singapore action, he may still be restrained from pursuing the foreign action if this would be vexatious or oppressive.⁸³

19.46  If there is a prima facie case of vexation or oppression, the court will then examine the alleged injustice that the defendant would suffer if he were deprived of the advantages sought in the foreign proceedings.⁸⁴ At this stage, any legitimate juridical advantages⁸⁵ will be identified and balanced against the vexation or oppression caused to the plaintiffs.⁸⁶

19.47  In Widjaya, following Aérospatiale, the Singapore Court of Appeal made clear that caution would be required for the grant of a non-contractual anti-suit injunction, in order to ensure consistency with comity.⁸⁷ The language of ‘caution’ has been used in many subsequent cases.⁸⁸ However, there is a strand of the Singapore case law which has stated that vexation or oppression should only be found in ‘the clearest of circumstances’.⁸⁹ Similarly, it has been said that (in non-contractual situations) the jurisdiction is to be (p. 437) exercised sparingly and in exceptional cases.⁹⁰ As a matter of language this might be seen as a higher test, which if so, is not reflected in the jurisprudence of other common law countries. However, the Singapore courts have not stated that they are intending to impose any higher threshold compared to the approach taken in the wider common law, and in Kirkham the Court of Appeal considered the ‘clearest of circumstances’ language alongside the previous English and Privy Council authorities and did not consider it adopted any different test. Most recently, the Court of Appeal in Sun Travel v Hilton International used the language of ‘caution’ for anti-suit injunctions in general, and reserved the language of ‘exceptional’ circumstances for the more specific situation of anti-enforcement injunctions.⁹¹ It is suggested that ‘caution’, and no higher threshold, best represents Singapore law.

19.48  Anti-suit injunctions may be granted to restrain the enforcement of foreign judgments. But where the injunction is being sought after the foreign judgment, this will usually mean that there has been delay in seeking it. This factor, and the heightened significance of comity where the Singapore court is being asked to interfere with the pursuit of foreign proceedings where the foreign court has already given judgment, have led the Singapore court to say that ‘anti-enforcement’ injunctions will be granted only in ‘exceptional’ cases.⁹²

19.49  As discussed in Chapter 7, the English courts have adopted a distinct set of tests for contractual cases, where the foreign proceedings are in breach of an injunction. These are often known as The Angelic Grace principles,⁹³ following the 1995 English Court of Appeal decision of that name. Where the foreign litigation is in breach of an exclusive forum clause, an injunction to restrain it will ordinarily be granted unless there are ‘good reasons’ or ‘strong reasons’ not to do so; although there is always a discretion to refuse to grant an injunction. As Millett LJ explained, where there is a breach of a jurisdiction or arbitration clause, there is no need for ‘diffidence’, and the caution which is a requirement in non-contractual cases need not be applied.⁹⁴

19.50  In the Kirkham summary, the relevance of an exclusive forum clause was mentioned merely as a factor relevant to the grant of an injunction.⁹⁵ But it is clear from Kirkham itself and the developed Singapore case law that has followed it, that the Singapore courts do not treat the presence of a binding exclusive forum clause merely as a factor within an overall assessment of vexation. Instead, the recent case law has therefore adopted a distinct rigorous test (p. 438) in contractual cases, which is substantially the same as the English Angelic Grace test.⁹⁶ The breach of the exclusive forum clause is a sufficient and independent basis for the injunction and the injunction should, in general, be granted unless there are strong reasons not to do so.⁹⁷

19.51  The adoption of the Angelic Grace approach in Singapore has been driven in part by Singapore public policy in favour of arbitration. As Lee Seiu Kin JC explained in WSG Nimbus, maintenance of Singapore’s position as a centre for international legal services and international arbitrations requires a ‘robust approach’, and is consistent with the New York Convention.⁹⁸ The Singapore courts are confident that this is consistent with comity.

19.52  There have been some variations in manner of expression. In WSG Nimbus the court expressed itself in terms that if there is an arbitration agreement the court ‘has a duty to uphold that agreement and prevent any breach of it’, without reference to an exception for ‘strong reasons’; but the court had earlier referred to, with approval, the passage in The Angelic Grace containing the ‘good reasons’ exception.⁹⁹ Further, although there was no express reference to discretion in WSG Nimbus, it is clear from the other case law that the court does retain a discretion to refuse to enforce an exclusive forum clause by injunction.¹⁰⁰ In Grover v SetClear, the first instance judge referred to the need for ‘special or exceptional reason’ to show why the injunction should not be granted.¹⁰¹ In other cases, however, like Maldives, the decision in The Angelic Grace has simply been stated as being the law,¹⁰² or the test that the injunction should generally be granted unless there are strong reasons not to do so has been expressly adopted.¹⁰³ It is submitted that these occasional variations of expression do not change the essence of the tests, and in Hilton v Sun the English tests were (p. 439) adopted without modification,¹⁰⁴ subject potentially to one point about the role of comity (to which we will return).

19.53  As a result, in contractual cases it is not necessary to show that Singapore is the natural forum for the litigation, as the agreement to Singapore either as the exclusive jurisdiction or the seat of the arbitration gives the Singapore courts sufficient interest. In BC Andaman Quentin Loh J explained: ‘the principle of comity is also not violated when a court grants an anti-suit injunction to protect interests arising from proceedings before an arbitral tribunal whose seat is in the forum, or to enforce an arbitration agreement conferring jurisdiction on such a tribunal’.¹⁰⁵

19.54  Similarly, it is not necessary to show that the foreign proceedings are vexatious or oppressive or satisfy one of the other non-contractual thresholds: the breach of contract is sufficient basis.¹⁰⁶

19.55  There is, however, one dimension in which the Singapore courts may be beginning to develop a difference of thinking to the English courts. There is some English case law that suggests that the importance of upholding the exclusive forum clause means that where foreign proceedings are in breach of an exclusive forum clause, comity has no further significance (at least outside the situation of delay).¹⁰⁷ The Singapore case law, however, suggests that although the presence of the exclusive forum clause will reduce the importance of comity, it may remain a relevant factor.¹⁰⁸

19.56  Since the injunction is discretionary, the conduct of the injunction claimant can lead to it being refused, even where the foreign proceedings are in breach of contract. Factors that can lead to refusal are ‘unclean hands’,¹⁰⁹ or other conduct that amounts to unconscionability by the injunction claimant.¹¹⁰

19.57  As part of this, the case law requires that, even where the foreign proceedings are in breach of contract, anti-suit injunctions should be brought promptly and without delay.¹¹¹ Unjustified and unconscionable delay in seeking the injunction can warrant its refusal. Delay engages comity, and the longer the delay and the more advanced the foreign court proceedings become, the stronger the considerations of comity against the grant of the injunction will be.¹¹²

(p. 440) 19.58  Care must of course be taken as to whether the foreign proceedings are indeed in breach of contract. For example, in Regalindo, New York security proceedings were not regarded as a breach of an arbitration clause and so the question of whether the security should be injuncted was assessed by reference to non-contractual principles of vexation and oppression.¹¹³ Further, a non-exclusive forum clause in favour of Singapore does not create any contractual obligation not to litigate abroad; and mere duplication is not enough to justify an injunction. Instead, where the clause is non-exclusive, some independent and additional wrongfulness, such as vexation and oppression independent of the clause, is required.¹¹⁴

19.59  The Singaporean courts have recognized that an anti-suit injunction can be granted in support of and to protect arbitration proceedings. In Hilton v Sun, Belinda Ang Saw Ean J observed (applying Lord Hoffmann’s comments in The Front Comor) that ‘the exercise of the jurisdiction to restrain foreign court proceedings is generally regarded as an important and valuable weapon in the hands of a court exercising supervisory jurisdiction over the arbitration’.¹¹⁵ As discussed in section B, ‘Sources and Powers’, the power to grant a permanent and interim injunction in support of arbitration exists under statute, and has not been removed by the UNCITRAL Model Law.¹¹⁶

19.60  Where the foreign proceedings are in breach of the arbitration agreement, the strong contractual principles discussed above, derived from The Angelic Grace, apply. The Singapore courts have adopted the reasoning in the English Supreme Court’s decision in Ust-Kamenogorsk that an arbitration agreement contains an implied negative obligation not to litigate outside the contractual forum, which can be enforced by injunction even if no arbitration has yet been commenced.¹¹⁷

19.61  The High Court has emphasized that, consistent with the policy underlying the International Arbitration Act, the court must take a ‘robust approach’ and ensure that the parties’ arbitration agreement is upheld.¹¹⁸ However, recently in Sun Travel v Hilton International, an anti-enforcement injunction to restrain the enforcement of a foreign judgment obtained in breach of an arbitration clause was refused, because of the delay and the comity concerns involved in intervening after the foreign judgment.¹¹⁹

19.62  In addition, if the foreign proceedings are a collateral attack on the arbitration award (even if not a direct breach of the arbitration agreement), this will be a strong ground to support (p. 441) an injunction on the basis that the foreign proceedings are vexatious, or that it is necessary to protect the arbitral jurisdiction, or it is otherwise in the interests of justice to do so.¹²⁰ In this post-award situation, it has been held that greater caution is required than where the foreign proceedings are in breach of the arbitration agreement during the continuance of the arbitration, and so the Angelic Grace principles do not apply with the same rigidity.¹²¹

19.63  The statutory powers of the Singapore courts include powers that are broad enough to sustain anti-suit injunctions in support of foreign arbitrations or foreign court proceedings.¹²² It is, however, a separate question whether it is appropriate for the Singapore courts to do so. As we have seen, comity is a central restraining factor under Singapore law on anti-suit injunctions.¹²³ In English law, comity requires that the English courts have a ‘sufficient interest’ in the matter to grant an injunction, and in Airbus v Patel, this led the House of Lords to refuse to grant a non-contractual anti-suit injunction in support of litigation in the courts of India.¹²⁴ While the Singapore case law has not yet had cause to adopt Airbus, it is likely that the Singapore courts would apply similar principles; although as we shall see they have currently used the language of requiring ‘strong reasons’ rather than a sufficient interest.

19.64  Indeed, before the modern English doctrine of comity had been laid down by the House of Lords in Airbus, the Singapore High Court had anticipated its reasoning. In People’s Insurance v Akai, where there was a dispute between whether the English or Australian courts should have jurisdiction, and an English jurisdiction clause which Australian law purported to override, Choo Han Teck JC (as he then was) was asked to grant an anti-suit injunction to support English proceedings. He declined, saying:

19.65  His judgment was given after the English Court of Appeal’s decision in Airbus, which had upheld the injunction, but before the House of Lord’s reversal of the Court of Appeal; and in (p. 442) many respects his reasoning was prophetic of, and anticipated, Lord Goff’s approach in the House of Lords.

19.66  Choo Han Teck JC’s approach does not, however, amount to a blanket exclusion. In R1 v Lonstroff, Judith Prakash adopted his approach, and applied it to the case of foreign arbitrations. She concluded that it is only where ‘strong reasons are present’ that the Singapore courts would grant an anti-suit injunction to protect a foreign arbitration. She commented obiter that one possible situation where this might be so was where the forum in which the arbitration is to take place does not provide for effective interim measures in support of arbitration, but she did not need to decide the point.¹²⁶

19.67  Singapore is one of the contracting states to the Hague Convention on the Choice of Court. However, for reasons already discussed in this work, the Hague Convention should not preclude the grant of anti-suit injunctions between its contracting states. Whether it will affect the discretion to grant anti-suit injunctions remains to be seen.¹²⁷