When a U.S. Court Can Enjoin a Foreign Court Proceeding

Abstract

A federal court, at its discretion, may enjoin a parallel proceeding in a foreign court.  Currently, there is a split among the federal courts of appeals as to the circumstances under which an anti-suit injunction should be granted.  The Fifth, Seventh, and Ninth Circuits have adopted the “liberal approach.”  These courts have found that a court may enjoin a foreign proceeding if the parallel litigation is vexatious and duplicative.  In contrast, the First, Second, Third, Sixth, Eighth, and D.C. Circuits have adopted the “restrictive approach.”  These courts require a higher standard, and have found that if the parallel litigation is duplicative and vexatious, that alone is not enough to warrant an anti-suit injunction.  These courts emphasize the importance of international comity and consider it to be a main factor in evaluating whether to enjoin the foreign court.  This article argues that courts should adopt the restrictive approach because giving due consideration to international comity creates stability for international businesses, ensures that mutual respect is maintained between domestic and foreign courts, prevents backlash from foreign courts unhappy with U.S. courts, and ensures that both domestic and foreign litigants are treated equally.

Keywords: federal courts, enjoin, injunction, foreign courts, anti-suit