47 Pages Posted: 17 Nov 2011
Date Written: January 1, 2006
This article analyzes the controversial issues that erupt when parties to an international arbitration agreement try to avoid either their obligation to arbitrate or the enforcement of an arbitral award. In such cases, one party may seek to enjoin the arbitration process or annul the award. Seeking to prevent the issuance of the injunction or annulment, the opposing party may ask a United States court to grant an antitrust injunction against the foreign litigation. This article examines the policies that a court should consider in deciding whether to issue the injunction. The first is international comity, a doctrine of judicial restraint that requires courts to respect other countries’ laws and judicial decisions in order to further international dispute resolution. The second policy concerns the favorable treatment that international arbitration has enjoyed in the United States since this country passed the Federal Arbitration Act and ratified the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Since then, the courts have reconsidered the intersection of comity and proarbitration bias in the international arbitration antisuit context. The article’s thesis accordingly supports arbitration as a means for resolving international commercial disputes while upholding the integrity of comity in the transnational context.
Keywords: Antisuit injunction, international law, international arbitration, Federal Arbitration Act, FAA, United Nations Convention, proarbitration, antisuit
Suggested Citation: Suggested Citation
Swanson, Steven R., Antisuit Injunctions in Support of International Arbitration (January 1, 2006). Tulane Law Review, Vol. 81, p. 395, 2006. Available at SSRN: https://ssrn.com/abstract=1955654