U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask

Journal of International Arbitration, Vol. 28, No. 1, pp. 21-50, 2011

34 Pages Posted: 3 Mar 2011 Last revised: 12 Mar 2011

See all articles by Chetan Phull

Chetan Phull

Smartblock Law Professional Corporation

Date Written: February 1, 2011

Abstract

International arbitration is an increasingly popular dispute resolution mechanism, however, the threat of foreign court intervention unremittingly remains. It is therefore important for a party seeking to enforce an arbitration agreement to know which jurisdictions are most amenable to protecting arbitration agreements, and what courts in these jurisdictions consider material in deciding whether to issue an anti-suit injunction (ASI) against the party seeking to sidestep arbitration through a foreign court order. In the United States, courts in certain jurisdictions in particular have shown a willingness to protect arbitration agreements through ASIs, in the presence of certain factors. The author has uncovered five fact-specific questions from the case law produced by these courts that are material to the courts’ issuance of ASIs. In the abstract, the questions consider: actual refusal to arbitrate and parallel foreign litigation; recognition and enforcement of an arbitration award enjoined by a “competent authority” under the New York Convention; the res judicata effect of U.S. judgments; the strong public policy in favor of arbitration; and bad faith by the party seeking to hinder arbitration. The additional element of whether an ASI to enforce an arbitration agreement is requested from an offensive versus defensive position is also considered in the discussion of the five questions.

Keywords: International Arbitration, Arbitration, United States, U.S., Anti-Suit, Antisuit, Injunction, Enjoin, Enjoinder, Foreign, Litigation, Vexatious, Anti-Arbitration, Antiarbitration, ASI, AAI, Court Intervention, Defense, Defensive, Offense, Offensive, Arbitration Agreement, Arbitration Clause

JEL Classification: K19, K29, K33, K39, K40, K41, K42, K49, Z00

Suggested Citation

Phull, Chetan, U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask (February 1, 2011). Journal of International Arbitration, Vol. 28, No. 1, pp. 21-50, 2011. Available at SSRN: https://ssrn.com/abstract=1773929

Chetan Phull (Contact Author)

Smartblock Law Professional Corporation ( email )

180 John Street
Toronto, Ontario M5T 1X5
Canada

HOME PAGE: http://smartblocklaw.com

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