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Jan 01, 2006

Reflections on the Use of Anti-Suit Injunctions in International Arbitration

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“Reflections on the Use of Anti-Suit Injunctions in International Arbitration” in Pervasive Problems in International Arbitration (Kluwer, 2006, Loukas A. Mistelis and Julian D.M. Lew eds.), p. 201.

Traditionally, anti-suit injunctions, a well-known device in common law systems, are issued upon the request of a party that the other party be enjoined from initiating or from proceeding with a legal action in a different jurisdiction. Courts in civil law countries are increasingly willing, in certain circumstances, to enjoin a party to suspend or terminate an action brought in another country. These measures are commonly requested to preclude parasite litigation of a dispute before a different court, whether because the first court seized has issued a ruling or because its decision is pending. Violations of such injunctions may result in heavy penalties connected to the notion of contempt of court. The court that retains its jurisdiction or anticipates that it will do so thus seeks to protect its jurisdiction or, more generally, the jurisdiction of the forum it deems to be the most appropriate.

The introduction of anti-suit injunctions into international arbitration is a recent trend. Directed at arbitral proceedings or at court proceedings surrounding an international arbitration, they vary in their form and are requested either in an attempt to disrupt the arbitral process or, to the contrary, to try to protect it. It is however anti-suit injunctions aimed at preventing an arbitral tribunal from hearing a claim or obstructing the enforcement of an arbitral award that have seen the most spectacular development in recent years, prompting a debate on the adequacy of anti-suit injunctions in international arbitration.

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Authors and Contributors

Emmanuel Gaillard

Partner

International Arbitration

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