Anti Suit Injunctions – What are they and when can you get one?

Anti Suit Injunctions What are they and when can you get one | BDM Blog | BDM Law

Recently, we have been advising clients on a possible anti-suit injunction (ASI) against proceedings commenced in breach of an exclusive jurisdiction clause. On the back of that, we felt it might be useful to release this blog to shed more light on these injunctions, in particular what they are and the circumstances in which they can and cannot be obtained.

  1. Q: What is an ASI? A: Put simply, it’s an order from the English court prohibiting a person from commencing or continuing legal proceedings in another court where there is an exclusive jurisdiction clause or arbitration agreement in the applicable contract that provides for the proceedings to be exclusively determined elsewhere, usually in the English courts or in English arbitral proceedings.
  2. Q: Is it worth getting an ASI? A: Possibly but not always. If an ASI is granted against a person and that person ignores it, then a claim can be pursued in the English courts against them for damages. More importantly, if the directors of the company continue to pursue proceedings in breach of an ASI then they may be held personally liable for contempt of court. That could result in criminal proceedings against the directors or those directing the foreign proceedings. That may or may not be a matter of concern depending on whether those individuals reside in or visit the UK. Theoretically, there is the potential for extradition proceedings against those convicted of a crime in the UK, albeit that this may not be deemed proportional. At the end of the day these are all factors for the clients to weigh up alongside the costs of obtaining an ASI.
  3. Q: Can an ASI be obtained where another Court has already accepted jurisdiction? A: Yes. Prior to Brexit the position was different where proceedings had already been commenced in EU Courts and they were “first seized”. The English courts could not interfere with the EU court’s decision as to whether it felt it had jurisdiction. That changed after Brexit and English courts can now grant ASI’s to restrain proceedings in EU courts brought in breach of an exclusive English jurisdiction clause or an arbitration agreement. (1)
  4. Q: What do I need to prove? A: That there has been a breach of an exclusive jurisdiction clause/agreement to arbitrate. In many cases, that will be simple but one needs to check the wording of the clause. Is it truly an exclusive jurisdiction clause or is it a non-exclusive or asymmetric jurisdiction clause? If there’s an arbitration agreement then one also needs to consider whether it is validly incorporated. It’s quite common in shipping for goods to be carried under bills of lading which incorporate arbitration clauses in other contracts regardless of whether those taking delivery of the goods have seen that contract. The receiver of the goods may become bound to the agreement to arbitrate by simply demanding the goods shipped under the bill of lading to which it has become party. (2)
  5. Q: Has the jurisdiction clause been varied by agreement? A: Even if there is a valid jurisdiction agreement and/or agreement to arbitrate, sometimes this can be varied by agreement. A contractual carrier faced with an arrest of its vessel and/or demands for security may agree that cargo claims may be pursued in a particular jurisdiction and/or via arbitration notwithstanding the terms of the bills of lading and/or charterparty. One can’t get an ASI to prevent claims from being pursued in an agreed forum. One way to reserve the right to obtain an ASI is for a ship owner to post security that responds to the jurisdiction of a “competent court”.
  6. Q: What is the procedure for getting an ASI? A: Assuming there’s a breach of an exclusive jurisdiction clause and/or arbitration agreement, the procedure is relatively straightforward but the ASI can be refused if an application is not made promptly or the foreign proceedings are too far advanced or something has been done in those proceedings that would be deemed to be a waiver of the right to contest jurisdiction. It is wise to take prompt legal advice on all these issues and anyone seeking to challenge jurisdiction should make sure that they do not do anything to accept the foreign court’s jurisdiction.
  7. Q: Do I need to give notice of the application? A: In general, yes but not if the matter is urgent and notice might defeat the purpose of the application, for example by triggering an application by the respondent for an anti-anti-suit injunction. One normally seeks advice from lawyers in the jurisdiction where proceedings are afoot or threatened on whether notice should be given.
  8. Q: Does the exclusive law and jurisdiction clause in the contract need to specify English court or arbitration? A: Yes and No. The English courts will not grant an ASI to protect agreements to litigate elsewhere, although they will likely grant a stay of any English proceedings issued where there is an exclusive jurisdiction clause specifying some other court. (3) However, the English courts will grant an ASI to protect an agreement to arbitrate elsewhere provided that the law governing the arbitration clause is English law. (4)

We hope this is a useful summary for those thinking about the option of an ASI to restrain a breach of a contract. The parties to a contract generally put a great deal of thought into what might happen if there is a dispute and agreeing a neutral and impartial jurisdiction is part of that process. If one party seeks to ignore that then the other party should take prompt legal advice to work out how best to respond. An ASI is a potential option to those faced with such breaches. Over the years we have dealt with many situations where an ASI can be deployed to protect the clients’ interests. Even if it does not stop proceedings in the foreign court, the clients’ potential exposure can be minimized by obtaining a judgment for damages which can be used to frustrate any enforcement proceedings should the opponent win in its home court.

(1) See Ebury Partners Belgium SA v Technical Touch [2022] EWHC 2927.
(2) See The Kishore [2016] 1 Lloyds Rep 427.
(3) Airbus v Patel [1999] 1 AC 119
(4) Unicredit v Ruschemalliance [2024] EWCA Civ. 64.

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Nick Burgess
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