Anti Suit Injunctions
Anti-suit injunctions require a party not to commence, or to discontinue, proceedings in a foreign court. They have been sought in a variety of situations. When the Iranian central bank instituted action in an English court for repayment of a deposit with the London branch of an American bank, the latter attempted to have a US court enjoin the litigation. The ground was that repayment was in breach of the US regulations freezing Iranian assetsThe US court refused and referred to the close connection of the matter with England.
While the different US federal circuits are divided as to which standards to apply, there are suggestions that anti-suit injunctions will be granted only if the foreign proceedings threaten the jurisdiction of a US court (primarily if the foreign court is not merely proceeding in parallel but is attempting to carve out exclusive jurisdiction over an action), or undermine strong public policies of the United States.
Case 6 is based on an English decision, where the Court of Appeal granted an injunction against US litigation, even though the cause of action could only be pursued in the United States. Persons subject to the court's jurisdiction, as was the defendant, an English company, could be restrained from continuing proceedings in a foreign court, held the Court of Appeal, where the proceedings were unconscionable, as they were in the instant case: the plaintiff bank had no relevant presence in the United States, nor had it submitted to the US jurisdiction, and its activities in relation to the defendant were part of its business in England and were intended to be governed by English law.
A court's competence to grant an anti-suit injunction seems to derive from its jurisdiction to adjudicate. Since all that is required for this is a presence within the jurisdiction, there is a wide potential for anti-suit injunctions. If there is competence to grant an anti-suit injunction, on *vhat grounds will this be done? Where the action can be brought both in England and elsewhere, the approach of an English court will most likely be to grant an anti-suit injunction where England is the forum with which the action has its most real and substantial connection; by proceeding in the foreign court the plaintiff is acting oppressively; and the injunction will not deprive the plaintiff unjustly of an advantage in the foreign forum.
In a leading case, a US Court of Appeals indicated that it would issue an anti-suit injunction more sparingly than would an English court, although the difference between jurisdictions may not be as great as this decision suggests.
Where the substantive issue can be decided only by a foreign forum, an English court will still contemplate an anti-suit injunction, if the grounds mentioned above are established. A US court will not grant an anti-suit injunction if the foreign forum is the only one available.
A real problem is case 7, which has generated a great deal of controversy. An official body in country X, such as the securities regulators, orders a bank, with a presence in the jurisdiction, to produce information about a customer from a branch in another jurisdiction, in breach of the law there. The rules about jurisdiction to prescribe and enforce do not assist. Both jurisdictions have a competence to prescribe country X can prescribe the behaviour of the customer (e.g.
on its securities markets) and the bank (to produce the information), while country Y can prescribe confidentiality for accounts with banks there. Country X's competence to enforce the law is territorial, but this is satisfied because its orders are directed to the bank, which is in the jurisdiction.
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