An Appraisal of the Concept of Anti-Suit Injunction in International Arbitration

Description

ABSTRACT

An Appraisal of the Concept of Anti-Suit Injunction in International Arbitration

Chimezie Onuzulike*

The fundamental effect of a valid arbitration agreement is to confer jurisdiction on the arbitration tribunal to decide the dispute between the parties. Consequently, a positive obligation is imposed on the parties to submit their dispute to arbitration pursuant to the arbitration agreement and participate in good faith in the resolution of their disputes by arbitration. Thus, there may be cases where a party may require an injunction restraining the other party from instituting an action in violation of an arbitration agreement or continuing one already instituted. While anti-suit injunctions may not engender controversies in domestic arbitrations where a party institutes or intends to institute an action in national courts, the situation is different in international arbitration since such an injunction may be considered as an interference with the judicial process of a foreign sovereign state. This paper examines the grant of anti-suit injunctions in common law jurisdictions and international law concerns of comity affecting the grant of anti-suit injunctions. The paper considers the recent decision of the English Commercial Court in Specialised Vessel Services Ltd v Mop Marine Nigeria Limited. It concludes that anti-suit injunctions are desirable to protect arbitration agreements in both international and domestic arbitrations.

Keywords: Anti-suit injunction, Arbitration, Courts, Arbitration agreements, Common law.

INTRODUCTION
The existence of a valid arbitration agreement prevents courts from assuming jurisdiction over disputes subject to the arbitration agreement. Therefore, unless the arbitration agreement is null and void, inoperative or incapable of being performed, the court has a duty to refer the parties to arbitration.₁ Although a party may obtain a stay of proceedings where the other party proceeds to court in defiance of an arbitration agreement, a stay of proceedings may not invariably be sufficient to compel a party not to litigate in national courts or to submit to arbitration as agreed. This is because, since a stay only precludes the party from proceeding with the suit already instituted, the party may proceed to institute another action in a separate court. Accordingly, some states may offer additional remedies to enforce the obligation to refrain from litigating disputes subject to arbitration. These remedies are usually available in common law jurisdictions where national courts may be willing to issue “anti-suit injunctions” to prohibit the filing or prosecution of litigation in a foreign forum.₂

 * LL.B (First Class Honours), BL. Associate at G.Elias & Co, Lagos Nigeria.

1. See New York Convention 1958, art II(3); UNCITRAL Model Law on International Commercial Arbitration, art 8.
2. See Gary B Born, International Commercial Arbitration (2nd edn, Wolters Kluwer 2014) vol 1 1291.
   

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.12 NO.3