Despite the author’s iconoclastic inclinations, The Anti-Suit Injunction is not a rallying call for further modernization in the commercial court. Robes fell by the wayside many years ago with no apparent loss of authority or prestige, but that might be a step too far.
On the contrary, it is a deadly serious subject.
With Dr Johnson we may wonder what it is that endows the English court with its extensive view, surveying mankind from China to Peru and remarking each anxious toil, each eager strife. (Was there ever, by the way, a better description of international commercial litigation?) How is it that this unique common law remedy, liberated from the diffidence which once constrained it, is so commonly and powerfully deployed to restrain the pursuit of legal proceedings all over the world?
All over the world, that is, except in those jurisdictions which are still at the time of writing our European partners. Lord Hoffmann in West Tankers regarded the ability to grant such an injunction as an important and valuable weapon promoting legal certainty and providing a competitive advantage over jurisdictions which choose to handicap themselves by disdaining such remedies. All that was some years ago now and the sky has not fallen in, but even so there was undoubted force in his remarks and the popularity of such injunctions shows no sign of abating. They are a vital weapon in the armoury of every international litigator.
So, a new edition of Thomas Raphael’s book, written with his usual angelic grace, is more than welcome. It is everything that a legal textbook should be: a sound and succinct statement of the current law, already garlanded with the repeated imprimatur of the senior courts; a work of practical wisdom which never loses sight of the theoretical underpinnings of its subject; a polite but probing questioning of some of the more questionable judicial flights of fancy of which we are all sometimes found guilty; and a signpost pointing to the questions, and even better the answers, lurking and cleared for action just over the forensic horizon.
When the first edition of this book appeared (it seems only yesterday), I predicted that the most important question when a tricky point about these injunctions arose in future would be, ‘What does Raphael say?’ Ten years on, I see no reason to revise my prediction.
Sir Stephen Males
Royal Courts of Justice