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Anti-Suit Injunctions and the
Vexing Problem of Comity
DANIEL TAN*
TABLE OF CONTENTS
Abstract ............................................................................................... 285
I.
Introduction................................................................................ 286
II. Quaak’s Analysis of the Divergent Approaches to
Anti-Suit Injunctions under Existing U.S. Case Law ................ 291
III. The cases: Quaak and Paramedics ............................................ 293
A. Quaak v. Klynveld Peat Marwick Goerdeler
Bedrijfsrevisoren............................................................... 293
B. The Quaak Approach ........................................................ 293
C. Paramedics Electromedicina Comercial, Ltda. v.
GE Medical Systems Information Technologies, Inc....... 295
D. The Paramedics Approach ................................................ 296
E. LAIF X SPRL v. Axtel ..................................................... 297
F. The Approaches in Quaak and Paramedics
Compared.......................................................................... 298
IV. Standard of Review of Anti-Suit Injunctions Issued by
Lower Courts.............................................................................. 299
V. The Vexing Problem of Comity................................................. 301
VI. Concerns Raised by the Quaak Approach.................................. 302
A. The Inherent Uncertainty of Comity................................. 303
B. A Rarely Predictable, Predictably Rare Remedy? ............ 304
C. Overstating the Consequences of Anti-Suit
Injunctions?....................................................................... 305
* LLB (National University of Singapore); BCL (Oxford University); LLM (Harvard
University); Associate, Litigation Department, O’Melveny & Myers LLP, New York. The views
expressed in this Article are my own and do not necessarily reflect the views of O’Melveny &
Myers LLP.
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Losing Sight of the Equitable Origins of the
Remedy? ........................................................................... 307
E. The Comity-Induced Presumption against
Anti-Suit Injunctions and Factors Needed to
Rebut It: a Mismatch?....................................................... 309
VII. Suggested Two-Step Approach to the Anti-Suit
Injunction Inquiry ...................................................................... 312
VIII. The Threshold Requirements ..................................................... 313
A. The Requirement in Paramedics that the Resolution
of the Case Before the Enjoining Court Be
“Dispositive” of the Action to Be Enjoined...................... 314
B. The Requirements that the Parallel Actions
Involve the Same Parties and Issues................................. 317
1.
“Single Forum” Cases Not Involving
Parallel Litigation .................................................... 319
2.
Parallel Litigation Not Involving U.S.
Proceedings ............................................................. 321
IX. Sufficient Interest to Intervene and Interest Analysis:
An Evolving “Requirement” in the United States?.................... 323
X. Proposed Solutions..................................................................... 324
A. Developing Specific Categories of Cases Where
Anti-Suit Injunctions Would Ordinarily Issue.................. 324
1.
Possible Objections ................................................. 325
2.
Illustrative Categories.............................................. 326
a.
Anti-Suit Injunctions in Aid of
Arbitration Agreements.................................. 327
i.
The Federal Policy in Favor of
Arbitration: Paramedics and
LAIF X .................................................. 327
ii.
English Cases Enforcing
Arbitration Agreements by
Way of an Anti-Suit Injunction ............ 331
b.
Anti-Suit Injunctions in Aid of Forum
Selection Agreements..................................... 332
c.
Cross-Border Insolvency................................ 336
d.
Patent and Trademark Litigation.................... 337
e.
Protecting the Jurisdiction of the
U.S. Court ...................................................... 338
3.
Categories in Which Meaningful
Categorization May Be Difficult............................. 341
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B.
Drawing a Distinction between
Consequences of Breaching an Anti-Suit
Injunction: The Contempt Aspect and the
Non-Recognition Aspect................................................... 341
XI. Compensatory Civil Contempt and Damages for
Breach of an Anti-Suit Injunction Order.................................... 346
A. Damages: An Alternative Remedy to Anti-Suit
Injunctions ........................................................................ 347
1.
Power to Award Damages for Breach
of Contract............................................................... 347
2.
Power of the Court to Award Damages
in Addition to, or in Lieu of, an Injunction ............. 348
B. The Argument for Damages ............................................. 349
C. The Anglo-American Authorities ..................................... 350
D. Damages: A Potentially Far-Reaching Remedy ............... 353
XII. Conclusion ................................................................................. 354
ABSTRACT
The courts have long been troubled with the approach to be taken in
deciding whether to issue anti-suit injunctions to enjoin foreign
proceedings, evident in the sharp divergence in approaches between the
different circuits. This Article examines a recent attempt to forge a
solution by employing comity as a substantive factor in the inquiry, and
argues that such an approach is not only difficult to apply, but may even
deter the courts from articulating and developing the policies underlying
such injunctions—an exercise crucial to clarifying the law in this area.
This Article also examines another recent case, which follows the welltrodden approach of using comity as an important background
consideration. The Article discusses various implications of these cases,
in particular, (1) the need for, and content of, the threshold requirements
that a party seeking an anti-suit injunction must meet; and, (2) the
question of whether the compensatory aspects of the contempt
consequence, triggered by the breach of such injunctions, may signal a
willingness to develop the potentially far-reaching remedy of damages
as an alternative remedy. This Article proposes a two-stage approach
and suggests that courts consider comity in the latter of the two. Two
other solutions are proposed: (1) that the courts develop clear guidelines
in specific categories of cases where the strong policy factors
predominate; and, (2) that the courts mitigate the impact of anti-suit
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injunctions by severing the contempt consequences of such injunctions,
while preserving the rule that the court will not recognize a foreign
judgment obtained in breach of an anti-suit injunction.
I.
INTRODUCTION
In the common law world, [t]here is, so to speak, a jungle of
separate, broadly based, jurisdictions all over the world. In
England, for example, jurisdiction is founded on the presence of
the defendant within the jurisdiction, and in certain specified (but
widely drawn) circumstances on a power to serve the defendant
with process outside the jurisdiction. But the potential excesses
of common law jurisdictions are generally curtailed by the
adoption of the principle of forum non conveniens—a selfdenying ordinance under which the court will stay (or dismiss)
proceedings in favour of another clearly more appropriate forum.
…
The principle is directed against cases being brought in
inappropriate jurisdictions and so tends to ensure that, as
between common law jurisdictions, cases will only be brought in
a jurisdiction which is appropriate for their resolution. The
purpose of the principle is therefore different from that which
underlies the Brussels Convention. It cannot, and does not aim
to, avoid all clashes between jurisdictions; indeed parallel
proceedings in different jurisdictions are not of themselves
regarded as unacceptable. In that sense the principle may be
regarded as an imperfect weapon; but it is both flexible and
practical and, where it is effective, it produces a result which is
conducive to practical justice. It is however dependent on the
voluntary adoption of the principle by the state in question; and,
as the present case shows, if one state does not adopt the
principle, the delicate balance which the universal adoption of
the principle could achieve will to that extent break down…. It is
at this point that, in the present context, the jurisdiction to grant
an anti-suit injunction becomes relevant. This jurisdiction has a
long history, finding its origin in the grant of common
injunctions by the English Court of Chancery to restrain the
pursuit of proceedings in the English courts of common law,
thereby establishing the superiority of equity over the common
law. In the course of the 19th century we can see the remedy of
injunction being employed to restrain the pursuit of proceedings
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in other jurisdictions within the United Kingdom, and even in
other jurisdictions overseas.1
This Article addresses the deceptively simple question of whether, as
a recent case suggests, the courts can usefully employ comity as a
substantive device in determining the appropriateness of an anti-suit
injunction. It explores how the courts should approach the concept of
comity and how they may develop guidelines governing their discretion
to issue such injunctions.
As litigation becomes increasingly international in nature, anti-suit
injunctions, issued to enjoin foreign proceedings, are becoming more
commonplace.2 Parties to modern international litigation are more
sophisticated, and are more likely to forum shop, just as their opponents
will more likely resort to anti-suit injunctions to prevent them from
doing so. Litigants facing anticipated or ongoing foreign proceedings
are no longer satisfied simply with challenging proceedings in foreign
courts. Instead, they often consider, and elect to pursue, preemptive
remedies—such as anti-suit injunctions—in domestic courts to enjoin
the undesired foreign proceedings.3
1. Lord Goff in Airbus Industrie G.I.E. v. Patel, [1999] 1 A.C. 119, 132-33 (H.L.).
2. This Article
only addresses issues arising from “international” anti-suit
injunctions—injunctions that seek to enjoin proceedings in foreign courts. For a discussion of
various aspects of and differences between domestic and international anti-suit injunctions, see
generally George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28
COLUM. J. TRANSNAT’L L. 589 (1990). A commentator notes that a court should generally be
more cautious in granting an international anti-suit injunction, as opposed to a domestic one:
Although anti-suit injunctions find their greatest utility in the international setting, it is
also in that setting that they have their greatest capacity for mischief. Not only are
foreign relations apt to be more fragile than sister-state relations, but they are also more
apt to be disturbed—specifically by the apparent interference of one state’s courts in the
judicial business of another’s. From a more purely institutional point of view, the
interest of the federal executive in managing the country’s foreign affairs also stands to
be impaired by efforts of state and federal courts alike to restrain foreign country
judicial proceedings. It is on account of these heightened sensitivities that courts
admonish with particular emphasis in the international cases that anti-suit injunctions
“should be used sparingly” and “only in the most compelling circumstances,” and that
considerations of international comity deserve special weight.
Id. at 606-07.
For the origins of anti-suit injunctions, see ANDREW BELL, FORUM SHOPPING AND VENUE IN
TRANSNATIONAL LITIGATION 172 (2003); Eric Roberson, Comity Be Damned: The Use of AntiSuit Injunctions Against the Courts of a Foreign Nation, 147 U. PA. L. REV. 409, 413-14 (1998).
3. Andrew Bell notes that a litigant may prefer to seek an anti-suit injunction in a domestic
court, rather than a stay of proceedings in a foreign court: (1) where he will find it difficult to
obtain a stay of proceedings in the foreign court because that court has extremely wide
jurisdictional rules or a lack of a forum non conveniens doctrine; (2) where the foreign court may
look upon a stay application made by the litigant as submission to its jurisdiction, which gives the
foreign court the ability to render an internationally enforceable judgment; (3) where the litigant
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The frequency with which such issues arise before our courts impels
them to reconcile the conflicting authorities and to rationalize the law in
this area, so as to define the scope of the remedy and to clarify its role in
modern international litigation. In this endeavor, it is useful to observe
the remedy’s function in other jurisdictions,4 notably England, where
the law proceeds from similar foundations but has developed differently
in several respects.5 Case law from other common law jurisdictions
provides useful insights into how other courts have resolved the issues
raised by the anti-suit injunction, and how such injunctions may be used
to control international litigation.
Although the courts undoubtedly possess the technical competence to
address an anti-suit injunction at any party over whom they have
is simply skeptical of his ability to obtain a stay of proceedings in the foreign court; (4) where the
litigant is reluctant to incur the expense and inconvenience of challenging the jurisdiction or
seeking a stay of proceedings overseas; and (5) where issues of timing demand that the litigant
proceed swiftly (and proceedings can be pursued fastest in the domestic forum) or in the forum
where a party is most familiar or comfortable. BELL, supra note 2, at 170.
4. The value of doing this has been judicially recognized in England. In Bank of Tokyo Ltd. v.
Karoon, [1987] A.C. 45, 59 (Eng. C.A.), the court recognized that:
[I]t is not merely legitimate but desirable that courts in this country should pay due
regard to developments in sister common law jurisdictions, notably the United States….
Even so, we have to proceed with due caution. Not only do we have to operate within
the confines of the doctrine of precedent in this country, but we have to bear in mind
that the development of the relevant principles of law in our two countries may not be
identical. Frequently, however, under the influence of history and of practical pressures
to which both jurisdictions are subject, it transpires that there have taken place in our
two jurisdictions parallel developments which, though neither simultaneous nor
identical, reveal a very similar trend.
5. The court in Bank of Tokyo noted that both the United States and England adopt the same
common fundamental principles:
At bottom, the fundamental principles appear to have developed along similar lines.
Thus, the jurisdiction is very wide, being available for exercise whenever justice
demands the grant of an injunction. Again, the English court does not attempt to restrain
the foreign court, but operates in personam, restraining a party from instituting or
prosecuting the suit in the foreign jurisdiction; though an injunction will only be granted
to restrain a person who is regarded as being properly amenable to the jurisdiction of the
English courts. Furthermore, it has been repeatedly stated that the jurisdiction must be
exercised with extreme caution, indeed sparingly: this is partly because concurrent
proceedings in different jurisdictions are tolerated, but also because of a desire to avoid
conflict with other jurisdictions. For it is accepted, as is indeed obvious, that courts of
two different jurisdictions, one in this country and one in a foreign country, can have
jurisdiction over the same dispute. It is not prima facie vexatious for the same plaintiff
to commence two actions relating to the same subject matter, one in England and one
abroad; but the court may be less ready to tolerate suits in two jurisdictions in the case
of actions in rem than it is in the case of actions in personam. All these principles are
well-established, and indeed non-controversial, and appear to be common to both the
English and the United States jurisdictions.
Id. at 59-60.
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personal jurisdiction, the challenge lies in articulating the discretionary
principles governing the exercise of this equitable power.6 The courts
have long struggled with the legal standard to be applied—with the lack
of instructive guidelines resulting in some uncertainty as to when the
courts will grant anti-suit relief.
This uncertainty is no more evident than in the circuit split in
approaches as to a request for an anti-suit injunction.7 There are two
main approaches,8 neither providing a clear and workable test to guide
the courts in the anti-suit injunction inquiry. The First and Second
Circuits had the opportunity to grapple with these approaches in two
recent cases. The First Circuit in Quaak v. Klynveld Peat Marwick
Goerdeler9 discussed the approaches in some detail, and expressed a
qualified preference for the more conservative of the two. Conversely,
the Second Circuit in Paramedics Electromedicina Comercial, Ltda. v.
GE Medical Systems Information Technologies, Inc.,10 avoided
6. See Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645, 652 (2d Cir. 2004). The Second Circuit observed that it was “beyond question that a
federal court may enjoin a party before it from pursuing litigation in a foreign forum.” Id. at 652;
see also Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 16 (1st Cir.
2004) (noting the same and citing Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996)
and China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d Cir. 1987)).
7. See Steven R. Swanson, The Vexatiousness of a Vexation Rule: International Comity and
Anti-Suit Injunctions, 30 GEO . W ASH . J. INT’L L. & ECON. 1, 36 (1996) (noting that “[t]his
important divergence renders the issue ripe for clarification by the Supreme Court”).
8. This Article will refer to these approaches as the “liberal” and “conservative” approaches,
following the language employed by the court in Quaak. 361 F.3d at 17. The Fifth and Ninth
Circuits, following the “liberal” approach, regard anti-suit injunctions as appropriate where the
duplication of parties and issues, and prosecution of simultaneous proceedings would frustrate the
speedy and efficient determination of the case. See, e.g., Kaepa, 76 F.3d at 624, 627; Seattle
Totems Hockey Club, Inc. v. Nat’l Hockey League, 652 F.2d 852, 855-56 (9th Cir. 1981). In
addition, the Seventh Circuit is also “inclined” towards this liberal view. See, e.g., Philips Med.
Sys. Int’l v. Bruetman, 8 F.3d 600, 605 (7th Cir. 1993). The Second, Third, Sixth and District of
Columbia Circuits prefer the “conservative” approach. See, e.g., Stonington Partners, Inc. v.
Lernout & Hauspie Speech Prods., 310 F.3d 118, 126 (3d Cir. 2002); Gau Shan Co., Ltd. v.
Bankers Trust Co., 956 F.2d 1349, 1354-55 (6th Cir. 1992); China Trade, 837 F.2d at 36; Laker
Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926-27 (D.C. Cir. 1984). This
approach accords considerably greater weight to comity and dictates that the court will issue an
anti-suit injunction only where the foreign action imperils the jurisdiction of the forum court or
threatens some strong national policy. Quaak, 361 F.3d at 17. This strict approach has some
support in academic commentaries. One commentator argues that an anti-suit injunction should
generally not be granted on any ground where a foreign court could itself be expected to stay or
dismiss the proceedings before it; an anti-suit injunction in such cases would offend comity since
it would effectively preempt or overrule the decision of the foreign court. Trevor Hartley, Comity
and the Use of Anti-Suit Injunctions in International Litigation, 35 AM. J. COMP. L. 487, 506-09
(1987).
9. 361 F.3d at 17.
10. Paramedics, 369 F.3d at 651-52.
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controversy and did not discuss either approach—presumably deferring
to a prior Second Circuit decision that preferred the conservative
approach on this issue.11
This Article first comments on how these cases deal with the notion
of comity and, more generally, on their approaches to anti-suit
injunctions. The court in Quaak went into substantial doctrinal analysis
of anti-suit injunctions and so will be discussed at somewhat greater
length.
This Article next argues that, while neither approach is ideal, the
comity-centered one espoused by the First Circuit in Quaak is perhaps
more difficult to apply in practice and may even have the unfortunate
effect of preventing the courts from further rationalizing this area of
law. The Article will suggest that a preferable solution lies in the courts
adopting a two-stage inquiry into whether an anti-suit injunction is
appropriate—an approach that, in the first stage, allows the courts to
clarify the equitable circumstances ordinarily giving rise to a prima
facie entitlement to the remedy, and, in the second stage, encourages
them to address and develop the doctrine of comity.
Finally, this Article suggests various ways to develop the anti-suit
injunction in a manner consistent with the demands of comity. Wider
implications suggested by dicta in Quaak and Paramedics will be
addressed throughout. These include the different positions on issues
such as the appropriate standard of review of anti-suit injunctions
granted by lower courts and the threshold requirements that the party
seeking the injunction (“moving party”) must meet before the court will
consider if an injunction is warranted. This Article illustrates that one of
the regularly applied threshold requirements—that the forum action be
dispositive of that which the moving party seeks to enjoin—is irrelevant
in the case of an international anti-suit injunction and should be
discarded. It also questions whether there should be any threshold
requirements at all. This Article concludes by examining remarks in
Paramedics that courts may award compensatory civil contempt
damages to the non-breaching party upon the breach of an anti-suit
injunction order. These remarks may pave the way for a damages
remedy to assist in controlling international litigation.12
11. China Trade, 837 F.2d at 36-37.
12. Daniel Tan, Damages for Breach of Forum Selection Clauses, Principled Remedies, and
Control of International Litigation, 40 TEX. INT’L L.J. 623 (2005).
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II. QUAAK’S ANALYSIS OF THE DIVERGENT APPROACHES TO ANTISUIT INJUNCTIONS UNDER EXISTING UNITED STATES CASE LAW
In Quaak,13 the First Circuit prescribed how courts should approach a
request for an anti-suit injunction. While noting that the law on anti-suit
injunctions was largely “murky,”14 the Quaak court found that the
following propositions had been consistently endorsed by the courts: (1)
the federal courts have the power to enjoin those subject to their
personal jurisdiction from pursuing litigation before foreign tribunals;
(2) the power to enjoin foreign litigation must be tempered by the
accepted proposition that parallel proceedings on the same in personam
claim should generally be allowed to take place simultaneously; (3) the
decisional calculus must account for the presumption in favor of
concurrent jurisdiction; and (4) the decisional calculus must also
account for considerations of international comity, because “even
though an international antisuit injunction operates only against the
parties, it effectively restricts the jurisdiction of a foreign sovereign’s
courts.”15
Further, the Quaak court observed that United States courts have
interpreted the requirements for an anti-suit injunction in two basic
ways: the “liberal approach” adopted by the Fifth and Ninth Circuits,
and the “conservative approach” followed by the Second, Third, Sixth
and District of Columbia Circuits.16 Under the liberal approach, an
international anti-suit injunction is appropriate whenever the parties and
issues are the same, and when prosecuting simultaneous proceedings
would frustrate the speedy and efficient determination of the case.17
Under the conservative approach, the court will issue an anti-suit
injunction to enjoin a foreign action that either imperils the jurisdiction
of the forum court or threatens some strong national policy.18 The
Quaak court appeared to regard the essential difference between the two
methods as being the weight accorded to comity—with the conservative
13. 361 F.3d 11 (1st Cir. 2004).
14. Id. at 17.
15. Id.
16. Id.
17. Although the Fifth Circuit in Karaha Bodas Co. v. Negara, 335 F.3d 357 (5th Cir. 2003)
appeared to be willing to balance domestic judicial interests against the concerns of international
comity. Indeed, the court noted that, in issuing an anti-suit injunction, the court is “required to
balance domestic judicial interests against concerns of international comity.” Id., at 366. The
approach adopted by the Fifth Circuit in Karaha Bodas Co. would perhaps be more deferential to
comity than what the Quaak court might have thought in making this observation.
18. Quaak, 361 F.3d at 17 (citing Stonington Partners, Inc. v. Lernout & Hauspie Speech
Prods., 310 F.3d 118, 126 (3d Cir. 2002)); Gau Shan, 956 F.2d at 1355; China Trade, 837 F.2d at
36; Laker Airways, 731 F.2d at 927 for this proposition.
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approach according “appreciably greater weight to considerations of
international comity.”19
Neither approach earned complete approval from the Quaak court.
The court rejected the liberal as giving “far too easy passage to
international antisuit injunctions,”20 and believed it assigned too low a
priority to international comity—a consideration that should play a
central role in the inquiry. The court was more receptive to the
conservative, as one with “more to commend it.”21 The court justified
this preference on four grounds.22 First, the approach recognizes the
rebuttable presumption against issuing anti-suit injunctions.23 Second, it
pays more respect to considerations of international comity.24 Third, it
compels the court to balance competing policy considerations.25 Fourth,
it conforms with dicta that anti-suit injunctions should be issued only
with “care and great restraint,”26 while acknowledging international
comity as a fundamental principle deserving of substantial deterrence.27
But the Quaak court stopped short of unequivocally endorsing the
conservative approach. Recent expositions regarded its two main
rationales—the preservation of jurisdiction and protection of important
national policies—as exclusive grounds on which anti-suit injunctions
should be issued.28 This caused the Quaak court some discomfort
because these statements evince “a certain woodenness [and] the
sensitive and fact-specific nature of the inquiry counsels against the use
19. Quaak, 361 F.3d at 17. Judge Posner saw the d ifference between the two approaches as
one of proof:
When we say we lean toward the laxer standard we do not mean that international
comity should have no weight in the balance; we do not interpret the “lax” cases as
assigning it no weight. The difference between the two lines of case has to do with the
inferences to be drawn in the absence of information. The strict cases presume a threat
to international comity whenever an injunction is sought against litigating in a foreign
court. The lax cases want to see some empirical flesh on the theoretical skeleton. They
do not deny that comity could be impaired by such an injunction but they demand
evidence (in a loose sense–it needn’t be evidence admissible under the Federal Rules of
Evidence) that comity is likely to be impaired in this case.
Allendale Mut. Ins. Co. v. Bull Data Sys. Inc., 10 F.3d 425, 431 (7th Cir. 1993).
20. Quaak, 361 F.3d at 17.
21. Id. at 18.
22. Id.
23. Id.
24. Id.
25. Id.
26. Canadian Filters (Harwich) Ltd. v. Lear-Siegler, Inc., 412 F.2d 577, 578 (1st Cir. 1969).
27. Quaak, 361 F.3d at 18.
28. Id. (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 160-61 (3d Cir. 2001) and Gau
Shan, 956 F.2d at 1355, as authority for the proposition that these rationales were the “only”
justifications that can support the issuance of such an injunction).
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of inflexible rules.”29 The court did not think it right to restrict the
grounds for issuing international anti-suit injunctions in this way, and
reinstated the traditional and more flexible formulation prescribed in the
seminal case of Laker Airways.30
III. THE CASES: QUAAK AND PARAMEDICS
A.
Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren
In Quaak, the collapse of a Belgian defendant, audited by Klynveld
Peat Marwick Goerdeler Bedrijfsrevisoren (KPMG-B), precipitated a
flood of actions against the KPMG-B and other entities. These actions
alleged massive securities fraud and sought from KPMG-B the
production of documents relating to auditing records and associated
work papers. An order to produce these documents was granted,31 but
KPMG-B refused to comply on the basis that to do so would contravene
Belgian law. In addition, as a preemptory measure, KPMG-B asked the
Belgian courts for an order imposing substantial penalties on parties
who took any step to implement the discovery order. Faced with the
prospect of such an order, the plaintiffs sought an anti-suit injunction
against KPMG-B. The district court granted the injunction, and enjoined
the Belgian proceedings. KPMG-B appealed to the First Circuit.
B.
The Quaak Approach
The Quaak court attempted to set out a preferred approach to guide
district courts in this difficult area.32 The moving party must first satisfy
the threshold requirements of parallel suits involving the same parties
and issues in separate courts. If these requirements are not met, the court
will ordinarily end the inquiry and refuse the anti-suit injunction. But if
they are met, the court will consider all the facts and circumstances to
decide whether an anti-suit injunction should be granted.33 Throughout
this inquiry, the onus lies on the moving party to overcome the
“presumption”34 against issuing such injunctions.35 The moving party
29. Id.
30. Laker Airways, 731 F.2d 909.
31. See In re Lernout & Hauspie Sec. Litig., No. CIV.A.00CV11589PBS, 2003 WL
22964378, at *2 (D.Mass. Dec. 12, 2003).
32. Quaak, 361 F.3d at 18.
33. Id.
34. It is unclear if the Quaak court intended this to be a true presumption or if, by the label
“presumption,” the court merely saw it as a weighty factor to consider in the anti-suit balancing
exercise. This point will be addressed in greater detail.
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can rebut the presumption by referring to a variety of factors:
[R]ebutting this presumption involves a continual give and take.
In the course of that give and take, the presumption may be
counterbalanced by other facts and factors particular to a specific
case. These include (but are by no means limited to) such things
as: the nature of the two actions (i.e., whether they are merely
parallel or whether the foreign action is more properly classified
as interdictory); the posture of the proceedings in the two
countries; the conduct of the parties (including their good faith or
lack thereof); the importance of the policies at stake in the
litigation; and, finally, the extent to which the foreign action has
the potential to undermine the forum court’s ability to reach a
just and speedy result.36
Moreover, the Quaak court emphatically rejected the notion that it
would issue anti-suit injunctions only to protect the jurisdiction of the
court, or to safeguard some important national interest. Instead, they
insisted that in every case, the court must determine if the totality of the
circumstances merits an anti-suit injunction.37 In this determination,
international comity would play a central role. The court emphasized
that although an international anti-suit injunction operates only against
the parties, it effectively restricts the jurisdiction of a foreign court.38
Therefore, in the “highly nuanced” exercise of determining the
appropriateness of an anti-suit injunction, the courts must adopt an
approach that accords “appreciably greater weight to considerations of
international comity.”39 The Quaak court proceeded to give effect to the
concept by introducing comity as a hefty counterweight on one pan of
the scales in the balancing inquiry.40
35. Id. at 18:
If–and only if–this threshold condition is satisfied should the court proceed to consider
all the facts and circumstances in order to decide whether an injunction is proper. In this
analysis, considerations of international comity must be given substantial weight–and
those considerations ordinarily establish a rebuttable presumption against the issuance
of an order that has the effect of halting foreign judicial proceedings. We acknowledge
that the task of determining when a litigant has overcome this presumption is a difficult
one.
36. Id. at 19.
37. Id. at 18.
38. Id. at 17.
39. Id. at 16-17.
40. That this is the approach that the Quaak court adopted is buttressed by the language used
by the First Circuit:
Here, however, any methodological error was harmless: the district court, as part of its
inquiry, carefully considered all of the critical factors. We need not belabor the obvious.
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In summary, under the Quaak approach, assuming the threshold
requirements are met,41 the anti-suit inquiry starts with the rebuttable
presumption that the injunction should not be issued. The moving party
must then overcome this “presumption” by adducing factors that the
court would then balance against the hefty counterweight of comity.42
Presumably, the court will issue the anti-suit injunction if the moving
party adduces factors sufficient to “tip the scales.”
C.
Paramedics Electromedicina Comercial, Ltda. v. GE Medical
Systems Information Technologies, Inc.
More recently, in Paramedics, the Second Circuit reviewed the
propriety of an anti-suit injunction against proceedings in Porto Alegre,
Brazil. In a judgment which did not refer to (and contained somewhat
less doctrinal discussion than) Quaak, the Paramedics court presented a
different conception of comity’s role in the anti-suit injunction inquiry.
In Paramedics, Tecnimed, a Brazilian distributor, was party to
agreements containing broad arbitration clauses. These arbitration
clauses were invoked by Tecnimed’s contractual counterparty, GE
Medical, who began arbitral proceedings against Tecnimed. Instead of
arbitrating the dispute with GE Medical, Tecnimed not only commenced
a lawsuit against it43 in Brazil, but also petitioned the New York state
court to permanently stay the arbitral proceedings. GE Medical
responded by removing the petition to the federal court, requesting an
order compelling arbitration and an anti-suit injunction to enjoin
Tecnimed’s Brazilian action. The district court granted both orders
sought by GE Medical, and ordered Tecnimed to discontinue the
Brazilian suit.44
The parties and issues are substantially similar, thus satisfying the gatekeeping inquiry.
The district judge acknowledged the importance of comity concerns in her published
opinion. A reading of the hearing transcript leaves no doubt that she was fully aware of
the potential ramifications with respect to international comity and that she gave heavy
weight to those concerns. However, she placed on the opposite pan of the scale the
character of the foreign action, the public policy favoring the safeguarding of investors
from securities fraud, the need to protect the court’s own processes, and the balance of
the equities. In the end, the court determined that those factors counterbalanced comity
concerns in the peculiar circumstances of this case. Having conducted an independent
review, we find that determination fully supportable.
Id. at 20 (citations omitted).
41. That is the threshold requirement of parallel suits involving the same parties and issues.
42. Quaak, 361 F.3d at 18-19.
43. And a related company, GE Brasil.
44. See Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645, 649-50 (2d Cir. 2004).
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The Paramedics Approach
On appeal, the Second Circuit in Paramedics agreed with Quaak that
the moving party must meet certain threshold requirements but differed
with the Quaak court as to what those requirements were. The court
held that “[a]n anti-suit injunction against parallel litigation may be
imposed only if: (1) the parties are the same in both matters; and, (2) the
resolution of the case before the enjoining court is dispositive of the
action to be enjoined.”45 Again, the moving party must surmount these
threshold requirements before the court will consider whether additional
factors merit the injunction.46 According to the Paramedics court, these
factors include whether the foreign proceeding threatens some public
policy or the jurisdiction of the forum47—factors that were “salient” in
that case.48 The court cautioned that only the “strongest equitable
factors”49 and the “most compelling public policies of the forum”50
would substantiate the grant of an anti-suit injunction.51 Despite all this
cautionary language, the Second Circuit affirmed the grant of the antisuit injunction, largely because of the federal policy in favor of
upholding arbitration agreements,52 and because where a prior court had
already decided the issues pending before the foreign court, comity
applies with less force.53
45. Id. at 652 (citing China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d
Cir. 1987)).
46. Id.
47. Id. at 654.
48. Id.
49. Id. (citing Laker Airways, 731 F.2d at 931-32).
50. Id. (citing Gau Shan, 956 F.2d at 1358).
51. Paramedics, 369 F.3d at 654. The tenor of the language used in Paramedics suggests that
the federal policy of enforcing arbitration agreements is one such compelling public policy.
52. According to the Paramedics court,
Federal policy strongly favors the enforcement of arbitration agreements…. The federal
policy favoring the liberal enforcement of arbitration clauses applies with particular
force in international disputes…. We need not decide categorically whether an attempt
to sidestep arbitration is alone sufficient to support a foreign anti-suit injunction,
because “there is less justification for permitting a second action,” as here, “after a prior
court has reached a judgment on the same issues.”
Id. at 653-54 (citations omitted). The cited passage suggests that the court thought that the federal
policy in favor of arbitration was of such importance that, but for the additional factors
warranting the injunction, the court might have decided that the federal policy was sufficient on
its own to ground an anti-suit injunction. This will be discussed in detail later in this Article.
53. Id. at 654-55.
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LAIF X SPRL v. Axtel
In the subsequent case of LAIF X SPRL v. Axtel, S.A. de C.V.,54 the
Second Circuit cited extensively from and applied the Paramedics
approach. In this case, LAIF IV, a Bermudian affiliate of Belgian
limited partnership LAIF X, assigned to LAIF X subscription rights to
purchase shares in Axtel, a Mexican telecommunications company.
Axtel’s controlling shareholder, Telinor, acquired and converted certain
shares in Axtel, the net effect of which was to deprive LAIF X of its
controlling share in their class of shares. This sparked a dispute between
LAIF X and Telinor. Article 60 of Axtel’s bylaws provided that if the
shareholders could not resolve a dispute between them, “the Dispute
shall be submitted to a final and binding arbitration under the rules of
the American Arbitration Association’s Commercial Arbitration
Rules….” LAIF X petitioned for interim relief in Monterrey, Mexico
and also filed a demand for arbitration three months later. Before
answering LAIF X’s demand, Telinor commenced suit in Monterrey,
Mexico, seeking declarations that, if awarded, would have invalidated
the assignment of shares from LAIF IV to LAIF X, making LAIF X
incapable of commencing arbitration under Article 60. Telinor
requested that the American Arbitration Association dismiss the
arbitration for lack of an arbitrable dispute and, alternatively, that it stay
proceedings pending the outcome of the Mexican declaratory action.
In response to Telinor’s request, LAIF X asked the United States
District Court for the Southern District of New York to order Telinor to
arbitrate the issue of LAIF X’s title to the Axtel shares and for an antisuit injunction to enjoin Telinor from pursuing any related lawsuits,
including the Mexican declaratory action. The district court refused to
grant any relief, and LAIF X appealed to the Second Circuit.
The Second Circuit applied Paramedics and dismissed the appeal.
They reviewed the district court’s refusal to grant any relief, including
anti-suit relief, for abuse of discretion. The Second Circuit upheld the
district court’s refusal to compel arbitration because neither Telinor’s
challenge to arbitrability before the AAA, nor seeking a declaration in
the Mexican courts constituted a refusal to arbitrate.55
The Second Circuit noted the threshold requirements in Paramedics
but did not seem to be particularly concerned about whether the facts of
the case satisfied those requirements.56 It found that the district court
54. 390 F.3d 194 (2d Cir. 2004).
55. Id. at 198-99.
56. Id. at 199-200. Of course, this could be because the Second Circuit was reviewing a
refusal to grant an anti-suit injunction and preferred to base its decision on other less contentious
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had not abused its discretion by refusing to issue an anti-suit injunction
because (1) principles of comity counsel against issuing anti-suit
injunctions, (2) the United States’ federal courts have no interest in
enjoining the Mexican lawsuit, and (3) the Mexican lawsuit is not
directed at sidestepping arbitration.57 The implications of these holdings
will be examined later.
F.
The Approaches in Quaak and Paramedics Compared
The courts in both Q u a a k and Paramedics emphasized the
importance of comity in the anti-suit inquiry. Nevertheless, they had
different views of how comity should be given effect and different ideas
of the role that comity should play in the anti-suit inquiry.
Interestingly, neither court distinguished between comity as a
substantive factor and comity as the rationale underlying the need for
caution, even though this distinction could explain, in part, the different
approaches to comity in Quaak and Paramedics. The Paramedics court
appeared to regard comity as nothing more than a background
consideration that urges caution before resorting to the “extreme
measure” of an anti-suit injunction.58 This is a well-trodden approach.
Most anti-suit injunction cases speak of the need for caution in issuing
these injunctions, without explicitly using comity as a substantive factor
in the inquiry. On the other hand, the Quaak court, after considering the
issue at much greater length, thought that the concept of comity could
take on a more concrete form and could usefully serve as a substantive
consideration in the anti-suit inquiry. It is important to recognize that
this constitutes a new development in anti-suit injunction jurisprudence.
It is equally important to consider whether this development is a
grounds.
57. Id. at 200.
58. The Paramedics court emphasized the need for caution in issuing anti-suit injunctions:
It is beyond question that a federal court may enjoin a party before it from pursuing
litigation in a foreign forum. China Trade, 837 F.2d at 35. But principles of comity
counsel that injunctions restraining foreign litigation be “used sparingly” and “granted
only with care and great restraint.” Id. at 36 (internal quotation marks and citations
omitted); see also Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 160 (3d Cir. 2001).
Principles of comity weigh heavily in the decision to impose a foreign anti-suit
injunction; while such an injunction in terms is leveled against the party bringing the
suit, it nonetheless “effectively restricts the jurisdiction of the court of a foreign
sovereign.” China Trade, 837 F.2d at 35. So courts that contemplate this extreme
measure often must reconcile the protection of their own jurisdiction with respect for
the foreign forum. But where one court has already reached a judgment–on the same
issues, involving the same parties–considerations of comity have diminished force.
369 F.3d at 652, 654-55.
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desirable one.
IV. STANDARD OF REVIEW OF ANTI-SUIT INJUNCTIONS ISSUED BY
LOWER COURTS
The differing views of comity may also impact other aspects of the
anti-suit analysis—as evidenced by the different standards of review
adopted by the courts in Quaak and Paramedics. The Quaak court
thought that because anti-suit injunctions involve important
considerations of comity, a heightened “intermediate” level of appellate
review was appropriate. Although the reviewing court may cede a
modest amount of deference to the lower court’s exercise of discretion,59
it should carry out an independent review involving an “intermediate
level of scrutiny, more rigorous than the abuse-of-discretion or clearerror standards, but stopping short of plenary or de novo review.”60 The
Paramedics court thought that a more deferential standard was
appropriate and an appellate court should only examine the grant of an
anti-suit injunction for “abuse of discretion”—the standard of review
applicable to domestic permanent injunctions.61
These differing opinions on the applicable standard of review raise an
issue critical to clarifying the law in this area: how far international antisuit injunctions can be analogized to ordinary domestic injunctions. The
Paramedics court, adopting the standard of review generally applicable
to domestic permanent injunctions, did not think there was a sufficient
difference between international anti-suit injunctions and domestic
permanent injunctions to warrant a different standard of review.
Notably, the court cited as authority in support of its preferred standard,
a purely domestic case involving permanent injunctions against false
advertising.62 While it is not unusual for courts to draw analogies from
59. The First Circuit, however, made it apparent that it “will not hesitate to act upon our
independent judgment if it appears that a mistake has been made.” Quaak, 361 F.3d at 16
(quoting El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 492 (1st Cir. 1992)).
60. Quaak, 361 F.3d at 16 (following and citing the language used in United States v. Tortora,
922 F.2d 880, 883 (1st Cir. 1990)).
61. Paramedics, 369 F.3d at 651 (citing S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d
232, 237 (2d Cir. 2001) and China Trade, 837 F.2d at 37). Where the international anti-suit
injunction is in the form of a preliminary injunction, it appears that a district court’s grant of a
preliminary injunction will be reviewed on an abuse of discretion standard. This was also the
standard used by the Second Circuit in LAIF X, where the Second Circuit ostensibly followed its
own decision in Paramedics. LAIF X, 390 F.3d 198. However, even though the ultimate decision
whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion, a
decision grounded in erroneous legal principles is reviewed de novo. See Karaha Bodas Co. v.
Negara, 335 F.3d 357, 363 (5th Cir. 2003).
62. Paramedics, 369 F.3d at 651 (citing S.C. Johnson & Son, 241 F.3d at 237). Although in
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domestic rules when fashioning rules with international implications,
the analogy between international and domestic injunctions cannot be
drawn unquestioningly.
The courts cannot assume, without reasoned consideration, that rules
developed within the domestic context can just as easily be transposed
into the international arena. In contrast, the Quaak court was alive to the
fact that the international anti-suit injunction is a different animal from
its domestic counterpart. It reasoned that the international character of
such injunctions and their potential impact on comity required an
appellate court to be more interventionist in exercising its power of
review. That comity should factor into the anti-suit inquiry in this way
is testament to the Q u a a k court’s unusual appreciation of the
international dimension of anti-suit injunctions.
But it is possible that in formulating this more pervasive standard of
review, the Quaak court had in mind the standard applicable to the
grant of an anti-suit injunction—not the refusal to grant one. It is
unclear whether the Second Circuit would also have thought comity to
necessitate an intermediate standard of review where the issue was
whether the district court correctly refused to grant an anti-suit
injunction.63
Whatever the merits of arrogating to itself more pervasive powers of
review, the Quaak court’s willingness to scrutinize the modern-day
international anti-suit injunction, and to consider whether a separate set
of rules might be more suitable, is laudable. The authors of Cheshire
and North recognized the need to mould the injunction remedy to its
modern uses in controlling international litigation when they observed
that:
The problem faced by the courts nowadays is that of claimants
forum shopping in countries, such as the United States, where a
very wide jurisdiction is taken, a very different sort of problem
from that faced by courts in the 19th century. The use of
language from the 19th century only serves to obscure the basic
considerations that should be taken into account in this area: the
interests of the parties; the connections with the alternative fora;
the dictates of comity and the need for caution before restraining
fairness the court did also cite an anti-suit injunction case, China Trade, 837 F.2d at 37, even that
case contained nothing more than a bare conclusory statement that the district court in the case
abused its discretion, without any discussion as to whether this should be the proper standard to
apply, and without citing any authority for this proposition.
63. This is what the district court in LAIF X did. 390 F.3d at 194.
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foreign proceedings.64
When formulating guidelines to govern international anti-suit
injunctions, the courts should not simply apply the age-old rules relating
to domestic injunctions in general but should instead consider whether
the “international” and the “anti-suit” aspects of modern anti-suit
injunctions require the traditional rules to be modified or discarded.
V.
THE VEXING PROBLEM OF COMITY
Federal courts can enjoin any party over whom they have personal
jurisdiction from pursuing litigation in foreign courts.65 The courts in
Quaak and Paramedics acknowledged this principle. Both courts also
agreed that demands of comity required the power to issue anti-suit
injunctions be strictly circumscribed. The question is what exactly
comity requires in anti-suit injunction practice.
The courts often define comity as “the recognition which one nation
allows within its territory to the legislative, executive, or judicial acts of
another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens, or of other persons
who are under the protection of its laws.”66 The Quaak court discussed
comity at great length and regarded it not as a rigid obligation, but a
“protean concept of jurisdictional respect.”67
64. P.M. NORTH & J.J. FAWCETT, PRIVATE INTERNATIONAL LAW 365 (13th ed. 1999).
65. See, e.g., Kaepa, 76 F.3d at 626; China Trade, 837 F.2d at 35.
66. Hilton v. Guyot, 159 U.S. 113, 164 (1895).
67. Quaak, 361 F.3d at 19 . Whatever definition is adopted, these definitions give scant
guidance as to how these concepts apply in practice. Andrew Bell notes, in his excellent book, the
various pertinent academic and judicial pronouncements on the concept of comity: BELL, supra
note 2, at 235. Bell notes that comity has been described as “not an absolute value, but [it] is no
more flexible or optional than others…. The term denotes the deference we should give to foreign
judicial proceedings, a deference which arises not because we think those proceedings correct but
because they are the judicial proceedings of a friendly state.” Id. (citing V. Black, The Anti-Suit
Injunction Comes to Canada, 13 QUEEN’S L. J. 102, 119 (1987-1988)). Bell also notes that there
is judicial dicta criticizing the concept. The Chief Justice of British Columbia is reported to have
described it as a “little understood concept upon which so much depends, and which is often more
a matter of legal fiction than of reality or principle.” Id. (citing Amchem Prods., Inc. v. Workers’
Compensation Bd. [1993] 1 S.C.R. 897 (Can.)). Judge Bright in his dissent in China Trade opined
that “no comity principles between nations are at stake in resolving a piece of commercial
litigation.” China Trade, 837 F.2d at 40 (Bright, J., dissenting). Leading commentators on private
international law F.A. Mann and Dicey respectively described comity as “so elusive and
imprecise a term as to render its use unhelpful and confusing” and “a singular specimen of
confusion of thought produced by laxity of language.” S e e 1 D ICEY AND M ORRIS ON THE
C ONFLICT OF L AWS 307 (Lawrence Collins et al. eds., 13th ed. 2000) (citing F.A. MANN,
FOREIGN AFFAIRS IN ENGLISH COURTS 136 (1986)). A commentator goes so far as to note that
the concept of comity is “far too vague and shifting a notion to serve as a satisfactory theoretical
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Comity may be of great normative importance, but its ability to
provide definitive guidance is doubtful. The Quaak court recognized
this shortcoming, candidly acknowledging that “the task of determining
when a litigant has overcome this presumption [against issuing an antisuit injunction] is a difficult one.” The court reasoned that this is “partly
because comity is an elusive concept…[a]nd to complicate matters,
comity, like beauty, sometimes is in the eye of the beholder.”68 This
admission makes it all the more bewildering that the Quaak court would
endorse an approach in which comity plays a central role. Nevertheless,
the Quaak court regarded comity as a necessary counterweight—one
which must be laid on the scales in the anti-suit injunction balancing
exercise.69 Indeed, the court went so far as to say that considerations of
comity necessitated a rebuttable presumption against issuing anti-suit
injunctions.70
VI. CONCERNS RAISED BY THE QUAAK APPROACH
Indisputably, comity limits the court’s discretion to grant
international anti-suit injunctions. But it is unclear whether the Quaak
approach of using comity as a substantive device in the inquiry, and of
restricting the anti-suit injunction through a “comity-induced
presumption” is the best way to effect those limits in practice.
Comity, in its abstract sense, can serve as a general principle, but no
more than that. The “comity-centered” approach advanced by the Quaak
court envisages comity as a heavy counterweight on one end of the
scales, effecting a presumption against issuing anti-suit injunctions. The
approach places the onus on the moving party to plead reasons
sufficient to tip the scales but, because of comity’s abstract nature, gives
him little guidance as to how he can do this.71
But the Quaak court also recognized that an anti-suit injunction may
be justified on more specific and concrete grounds, such as preservation
underpinning for a sophisticated system of private international law.” J. G. COLLIER, CONFLICT
379 (3rd ed. 2001).
68. Quaak, 361 F.3d at 18-19.
69. As when the court quipped, “We hasten to add that although the definition of comity may
be tenebrous, its importance could not be more clear.” Id. at 19.
70. Id. at 18.
71. According to the Quaak court:
We acknowledge that the task of determining when a litigant has overcome this
presumption is a difficult one…. In the final analysis, rebutting this presumption
involves continual give and take. In the course of that give and take, the presumption
may be counterbalanced by other facts and factors particular to the specific case.
Id. at 18-19.
OF LAWS
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of jurisdiction or the safeguarding of important national policies.72 The
court would not restrict the bases of issuance to these grounds alone,
suggesting that others may also suffice. Defining and developing these
specific circumstances will go a long way toward giving meat and bones
to the anti-suit inquiry.
The following Sections examine several aspects of Quaak’s
reasoning and argues that: (1) comity is too uncertain a concept to
perform the sophisticated task of guiding the courts in determining the
appropriateness of an anti-suit injunction; (2) the Quaak approach,
contrary to what the court claimed, leads to less (not more)
predictability; (3) the courts tend to overstate the practical effects of
anti-suit injunctions; (4) the Quaak approach, with its emphasis on
comity, may lead courts to lose sight of the equitable nature of the
remedy; and (5) Quaak’s rebuttable presumption may not be the best
way to give effect to comity, especially since the factors that the moving
party might use to rebut the presumption do not seem a logical match. It
may also be difficult to apply comity as a major substantive factor
because the courts are not used to considering comity when deciding
whether to grant or deny equitable orders.
A.
The Inherent Uncertainty of Comity
First, international comity can explain the need for caution in issuing
anti-suit injunctions but not the circumstances in which they should be
issued. The Quaak approach of employing comity substantively fails to
provide any real guidance for future cases. As the Quaak court
implicitly admits, applying its approach to any particular case is
difficult, because the moving party will be unaware of the case he has to
meet and because the approach may lead to decisions hinging on little
more than the value a particular judge ascribes to comity. Rather than
adopting the straightforward but ill-conceived technique of employing
comity substantively, the best way to give expression to comity and
other considerations implicated by anti-suit injunctions is to develop
clear and principled guidelines specifying when anti-suit injunctions are
appropriate.
Given the amorphous nature of comity, it may be best to follow the
Paramedics approach and regard it simply as a cautionary reminder
against issuing anti-suit injunctions.73 At the very least, the Paramedics
72. Id. at 19.
73. The Fifth Circuit has commented that the comity requirement in effect requires “a district
court to genuflect before a vague and omnipotent notion of comity every time that it must decide
whether to enjoin a foreign action.” Kaepa, 76 F.3d at 627. See also Turner Entertainment Co. v.
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approach removes the temptation for the courts to interpose comity as a
convenient shorthand for policy considerations that they find too
difficult or too troublesome to articulate. The Quaak approach fails to
address the apposite policy questions that trouble this area of law, but
instead allows the courts to sidestep these questions completely, by
relying exclusively on comity to justify their decisions. Yet, in order to
rationalize the law in this area, explicating the policy considerations is
just what the courts need to do. To hide these policy considerations
under the veneer of “comity” does little to clear the confusion.
B.
A Rarely Predictable, Predictably Rare Remedy?
Second, it is difficult to agree with the Quaak court’s comment that a
comity-based approach leads to more predictability. The court was
reported to have said:
We hasten to add that although the definition of comity may be
tenebrous, its importance could not be more clear. In an
increasingly global economy, commercial transactions involving
participants from many lands have become common fare. This
world economic interdependence has highlighted the importance
of comity, as international commerce depends to a large extent
on “the ability of merchants to predict the likely consequences of
their conduct in overseas markets….” This predictability, in turn,
depends on cooperation, reciprocity, and respect among nations.
That helps to explain the enduring need for a
presumption—albeit a rebuttable one—against the issuance of
international anti-suit injunctions.74
As discussed, using comity as a substantive factor in the anti-suit
inquiry makes it difficult to anticipate how a court will rule in any
particular case. Perhaps the Quaak court thought that the comityDegeto Film GmbH, 25 F.3d 1512, 1519 n.10 (11th Cir. 1994). See also Joel R. Paul, Comity in
International Law, 32 HARV. INT’L L.J. 1, 3-4 (1991). One commentator noted after a review of
the various judicial formulations of comity that:
[i]t is thus utterly obvious that there is no received doctrine of international comity at
all. All one can find is a jumble of vague and often contradictory statements in judicial
decisions. If our brick house of international system were indeed held together by the
fragile mortar called “comity,” it would have crumbled into debris long, long ago.
Adding to the muddle is the indiscriminate use by judges and writers of the terms
“comity of nations” and “judicial comity,” without considering if there is any distinction
between them.
Look Chan Ho, Anti-Suit Injunctions in Cross-Border Insolvency: A Restatement, 52 INT’ L &
COMP. L.Q. 697, 716 (2003).
74. Quaak, 361 F.3d at 19.
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induced presumption against issuing anti-suit injunctions would make
them relatively rare—and, in that sense, predictable. Even so, the
precise circumstances in which anti-suit injunctions will be issued
remains unclear. To use an uncertain and hugely subjective concept
such as comity to ground a rebuttable presumption cannot but result in
less, and not more, predictability as to when anti-suit injunctions will be
issued—an approach that lends itself to speculative litigation.
C.
Overstating the Consequences of Anti-Suit Injunctions?
Third, Quaak and other courts tend to overstate the practical effects
of anti-suit injunctions. The Quaak court described the anti-suit
injunction as “an order that has the effect of halting foreign judicial
proceedings” (emphasis added).75 In the same fashion, the court in Gau
Shan Co. v. Bankers Trust Co.76 warned that “[i]f both the foreign court
and the United States court issue injunctions preventing their respective
nationals from prosecuting a suit in the foreign forum, both actions will
be paralyzed and neither party will be able to obtain any relief”
(emphasis added).77 In his dissent in Kaepa, Inc. v. Achilles Corp.,78
Circuit Judge Garza noted that the United States courts “act to deprive a
foreign court of jurisdiction only in the most extreme circumstances”
(emphasis added).79
Are the effects of anti-suit injunctions as drastic as these statements
suggest? Clearly, they cannot halt or paralyze foreign proceedings, or
deprive the foreign court of jurisdiction. On the contrary, foreign courts
simply ignore such orders. In Donohue v. Armco,80 Lord Justice Sedley,
sitting in the English Court of Appeal, observed that “[t]he risk inherent
in an anti-suit injunction, if it is unwisely granted, is that it will not
succeed in stopping a party whose assets are located outside the
jurisdiction from litigating abroad nor dissuade the courts of other
countries from entertaining the litigation.”81 The anti-suit injunction
granted by the New York court in General Star International Indemnity
Ltd. v. Stirling Cooke Brown Reinsurance82 not only failed to stop the
English proceedings, but annoyed the English court such that an antisuit injunction was issued against the New York proceedings in
75.
76.
77.
78.
79.
80.
81.
82.
Id. at 18.
Gau Shan, 956 F.2d 1349.
Id. at 1354-55.
Kaepa, 76 F.3d 624.
Id. at 629.
[2000] 1 Lloyd’s Rep. 579 (Eng. C.A.).
Id. at 600.
[2003] Lloyd’s Rep. 719 (Eng. Q.B.D. Comm. Ct.).
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response. These observations on the exaggerated effects of anti-suit
injunctions are all the more puzzling because anti-suit injunction
orthodoxy has it that they are not orders directed at the foreign court.83
Yet the cases are replete with such phrases.
The courts must accurately describe the real impact of these
injunctions. An international anti-suit injunction undoubtedly interferes
with the processes of the foreign court84—a point noted in both Quaak
and Paramedics.85 While it is true that the traditional retort—that the
grant of an anti-suit injunction does not infringe comity, because it
addresses private litigants and not the foreign court—is an overly
optimistic view of the matter, 86 the point remains that anti-suit
83. See China Trade, 837 F.2d at 35 (“The fact that the injunction operates only against the
parties, and not directly against the foreign court, does not eliminate the need for due regard to
principles of international comity”); Kaepa, 76 F.3d at 630. Also, the court in Through Transp.
Mut. Ins. Ass’n (Eurasia) Ltd. v. New India Assurance Co. Ltd., [2004] 1 Lloyd’s Rep. 206 (Eng.
Q.B.D. Comm. Ct.), para. 41 observed that on the evidence before it, the Finnish courts would not
regard themselves as bound by an anti-suit injunction, but that this was irrelevant since, in any
event, the order was not directed at them.
84. Foreign courts have not quite agreed with the view taken by the English courts that an
anti-suit injunction is only directed at a party and not at the foreign court itself. See Re the
Enforcement of an English Anti-Suit Injunction, [1997] I.L.Pr. 320 (OLG Dusseldorf). Justice
Aikens in O.T. Africa Line Ltd. v. Hijazy (The “Kribi”), [2001] 1 Lloyd’s Rep. 76 (Eng. Q.B.D.
Comm. Ct.), observed that:
[i]n that case the German court had made strong comments on the attempt to serve the
anti-suit injunction on a German national through the German courts. The German court
held: (i) that any attempt to serve the order was likely to infringe the sovereignty of
Germany; (ii) the anti-suit injunction infringed the jurisdiction of the German court,
which was the only court that could decide issues of jurisdiction concerning its own
courts; (iii) the fact that the order was addressed to the litigant as opposed to the German
court was irrelevant; the sovereignty of Germany was still infringed; (iv) the injunction
would deny the German litigant a right of free access to the German courts.
Id. at para. 81.
85. See Quaak, 361 F.3d at 17; Paramedics, 369 F.3d at 655; Kaepa, 76 F.3d at 630 (“It
makes no difference that in formal terms the injunction is only addressed to the parties. The
antisuit injunction operates to restrict the foreign court’s ability to exercise its jurisdiction as
effectively as if it were addressed to the foreign court itself.”); Laker Airways, 731 F.2d 909 (D.C.
Cir. 1984).
86. See Trevor Hartley, Comity and the U se of Anti-Suit Injunctions in International
Litigation, 35 AM. J. COMP. L. 487 (1987), where he notes:
In theory, an antisuit injunction does not interfere with the foreign court because it
operates in personam: it is an order addressed to the litigant, not to the court. But this
argument is sophistry. The foreign court cannot decide the case unless the parties take
the requisite procedural steps. By barring a party from doing this, a court is in reality
deciding whether the foreign court will hear the case. This is an interference with the
foreign court which by its very nature runs counter to the idea of comity.
Id. at 506.
Some courts apparently still hold fast to this semantic distinction, lamenting a German court’s
inability to “appreciate the subtlety of the distinction.” See ADRIAN BRIGGS, THE CONFLICT OF
LAWS 107 (2002) (citing Re the Enforcement of an English Anti-Suit Injunction, [1997] I.L.Pr.
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injunctions issued by United States courts do not, and cannot, halt
foreign judicial proceedings; only the foreign court has the power to do
this. The tendency to overstate the consequences of anti-suit injunctions,
if left unchecked, may overextend judicial hostility to a degree
unwarranted by the realities of international litigation.87
D.
Losing Sight of the Equitable Origins of the Remedy?
Fourth, in their zeal to urge caution in granting anti-suit injunctions,
the courts must be mindful of the equitable origins of the remedy. While
the rules governing the modern international anti-suit injunction need
not necessarily be carbon copies of those governing the domestic
injunction, both species of injunctions share equitable roots and the
courts should not abandon the traditional equitable considerations unless
a firm jurisprudential basis exists to govern the exercise of the equitable
remedy in the international context. Comity is not, at present, a
jurisprudential basis principled enough to do this.
This did not deter the Quaak court from elevating comity to the status
of a substantive limiting factor in the anti-suit inquiry—an approach that
risks confusing the requirements for an anti-suit injunction with the
limits that the courts wish to place on it. Where courts consider granting
an anti-suit injunction, the initial focus should be on the “equitable
circumstances” of the particular case and not on an ill-defined
overarching policy consideration aimed at limiting, but not defining, the
320 and noting that some judges fail to “appreciate the subtlety of the distinction”). In Turner v.
Grovit, [2002] 1 W.L.R. 107 (H.L.), the House of Lords observed that:
[t]he present type of restraining order is commonly referred to as an “anti-suit”
injunction. This terminology is misleading since it fosters the impression that the order
is addressed to and intended to bind another court. It suggests that the jurisdiction of the
foreign court is in question and that the injunction is an order that the foreign court
desist from exercising the jurisdiction given to it by its own domestic law. None of this
is correct. When an English court makes a restraining order, it is making an order which
is addressed only to a party which is before it. The order is not directed against the
foreign court… The order binds only that party, in personam, and is effective only
insofar as that party is amenable to the jurisdiction of the English courts so that the order
can be enforced against him… The grant of the restraining order is not concerned with
and does not deny the jurisdiction of the foreign court.
Id. at 117-23. That case was an appeal from a judgment of the English Court of Appeal, which
had remarked that such an order “entails not the slightest disrespect to the [foreign] court.” Turner
v. Grovit, [2000] 1 Q.B. 345, 364 (Eng. C.A.).
87. Laker Airways, 731 F.2d at 927. See also Compagnie des Bauxites de Guinea v. Ins. Co.
of N. Am., 651 F.2d 877, 887 (3d Cir. 1981) (stating that “there is no difference between
addressing an injunction to the parties and addressing it to the foreign court itself”); Airbus
Industrie G.I.E. v. Patel, [1999] 1 A.C. 119, 138-41 (H.L.) (noting that an anti-suit injunction
constitutes indirect interference with the foreign court’s exercise of jurisdiction).
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availability of the equitable remedy.88 In Laker Airways, Judge Wilkey
observed that no precise rules govern the appropriateness of anti-suit
injunctions, and that in each case the “equitable circumstances
surrounding each request for an injunction must be carefully examined
to determine whether, in light of the principles outlined above, the
injunction is required to prevent an irreparable miscarriage of justice.”89
The Paramedics court also commented that “an anti-suit injunction will
issue to preclude participation in the litigation only when the strongest
equitable factors favor its use.”90 In Quaak, the court cited dicta in
Laker Airways91 “indicat[ing] that it was prudent to use a wider-angled
lens, making clear that the equitable considerations surrounding each
request for an injunction should be examined carefully”92 and also, on
the particular facts of Quaak itself, that “[t]he equities also counsel in
favor of affirming the district court’s order [of an anti-suit
injunction].”93 The courts should not confuse the equitable entitlement
to an anti-suit injunction with the policy factors that limit it. The two
tend to be confused when the courts employ comity, the natural limiter
on the remedy, as a central tenet in the anti-suit inquiry.
Indeed, making comity the focal point of the inquiry, instead of the
“equitable circumstances” of the case, is somewhat like putting the cart
before the horse. Comity, the constraining factor in the inquiry, need
only be considered after the equitable entitlement is established. An ex
ante emphasis on international comity may result in the temptation to
short-circuit the reasoning process. For example, a court might
conceivably refuse an anti-suit injunction by deciding ex ante that the
88. In Kenyon v. Weissberg, the Southern District of New York observed that:
A court of equity has been said to be the forum of conscience, and an appeal directed to
it is an appeal to the moral sense of the judge. In a proper case, the court acts upon the
conscience of the defendant and compels him to do that which is just and right.
240 F. 536, 538 (S.D.N.Y. 1917). See also Marine Ins. Co. v. Hodgson, 11 U.S. 332, 336 (1813).
There, Chief Justice Marshall wrote:
Without attempting to draw any precise line to which Courts of equity will advance, and
which they cannot pass, in restraining parties from availing themselves of judgments
obtained at law, it may safely be said that any fact which clearly proves it to be against
conscience to execute a judgment, and of which the injured party could not have availed
himself in a Court of law; or of which he might have availed himself at law, but was
prevented by fraud or accident unmixed with any fault or negligence in himself or his
agents, will justify an application to a Court of Chancery.
Id. at 336.
89. Laker Airways, 731 F.2d at 927.
90. Paramedics, 369 F.3d at 654 (quoting Laker Airways, 731 F.2d at 931) (emphasis added).
91. Laker Airways, 731 F.2d at 927.
92. Quaak, 361 F.3d at 18.
93. Id. at 20.
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hefty presumption raised by comity against issuing one cannot be
overcome, even before carefully scrutinizing the facts of, and policies
implicated in, a particular case. In other words, the initial presumption
may have the unfortunate effect of disinclining a court from considering
whether the cumulative weight of factors in favor of an injunction might
be sufficient to surmount the presumption against granting it. This is not
too far fetched since, with the increased emphasis on comity advanced
by Quaak, and the tendency of the courts to overstate the consequences
of anti-suit injunctions, courts may come to regard such injunctions as
available only in the most extreme cases.
In addition, the comity-induced presumption may even weigh so
heavily on the courts as to stunt their ability to consider creative
alternatives. In every anti-suit motion, the courts can at least consider
whether to impose conditional injunctions, to narrow the scope of the
order, to limit the remedial effects of the injunction, or to use alternative
methods of dealing with inequitable or unconscionable conduct, all the
while minimizing the impact of any potential order on comity. Under
the Quaak approach, the courts will probably dismiss the motion in
limine because of the heavy comity-mandated presumption, with scant
consideration of these alternatives. The courts should not countenance
an approach that encourages such inflexible tendencies toward equitable
remedies.
Furthermore, conflating the requirements for an injunction with its
limiting factors is antithetical to the purity of analysis. Attending to the
requirements and limits separately in the course of judicial reasoning
clarifies both; attending to them together clarifies neither.
E.
The Comity-Induced Presumption against Anti-Suit Injunctions
and Factors Needed to Rebut It: a Mismatch?
Fifth, the comity-induced presumption and the circumstances capable
of rebutting the presumption do not seem a congruent fit. Logically, if
the court proceeded from the comity-induced presumption against
issuing anti-suit injunctions, and required the moving party to rebut it,
the moving party should only be permitted to raise matters or
considerations that detract from the injunction’s potential impact on
comity. No other matters should ever suffice to rebut the presumption.94
94. As to factors that may rebut the presumption, mandated by comity against issuing antisuit injunctions, the court opined that “other facts and factors particular to a specific case” may
counterbalance the presumption. The court thought that this would include but not be limited to
matters such as the nature of the actions, the posture of the proceedings in the different countries,
the conduct of the parties, the importance of the policies at stake, and the potential of the foreign
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The case law, however, does not bear out this logical premise. Where
the equities of the case demand it, the otherwise imperative
consideration of comity does not deter the court from issuing an antisuit injunction. For example, despite the emphasis on comity in both
Quaak and Paramedics,95 both courts upheld the anti-suit injunctions
granted by the lower courts. Pragmatically speaking, the courts seem to
condition the amount of respect due to a foreign court on matters such
as the egregiousness of the respondent’s conduct and other
considerations unrelated to the impact an anti-suit injunction has on
comity.96
If comity forms the basis for the presumption then, as a matter of
strict logic, only factors lessening the impact of a putative anti-suit
injunction on comity should suffice to overcome the presumption. For
example, a party may conceivably rebut the comity-induced
presumption when seeking an injunction against foreign anti-suit
proceedings (a motion for an anti-anti-suit injunction).97 One would
speculate that in such a case, no issues of comity arise, since the foreign
court should not be offended by an order that it is itself prepared to
grant.98
Although the factors that the court weighs against a presumption need
not necessarily bear a logical correlation with each other, it is
nevertheless difficult to see the logical link between the presumption
and the usual factors that the courts consider sufficient to rebut it. This
in turn raises the question of whether a comity-induced presumption is
the most principled way of incorporating comity concerns into the anti-
action to undermine the forum court’s ability to reach a just and speedy result. Id. at 19.
95. The Quaak court describes comity as an “important integer in the decisional calculus” and
comments that its importance “could not be more clear.” Id. at 17, 19.
96. It is argued that Judge Posner had his finger on the problem when he opined that:
When every practical consideration supports the injunction, it is reasonable to ask the
opponent for some indication that the issuance of an injunction really would throw a
monkey wrench, however small, into the foreign relations of the United States…. The
only concern with international comity is a purely theoretical one that ought not trump a
concrete and persuasive demonstration of harm to the applicant for the injunction, if it is
denied, not offset by any harm to the opponent if it is granted.
Allendale Mutual Insurance, 10 F.3d at 431-33.
97. For a recent example of this, one step removed, see General Star International Indemnity
Ltd. v. Stirling Cooke Brown Reinsurance, [2003] Lloyd’s Rep. 719. In that case, the English
court issued an anti-suit injunction against New York proceedings that had attempted to enjoin
the English action. Quaak may also be reanalyzed as such a case, since the United States court
there granted an anti-suit injunction against Belgian proceedings which attempted to enjoin the
plaintiffs from enforcing the United States discovery order.
98. One would suppose that the principle at play here is something along the lines of “taking
as much as you give.”
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suit inquiry. Because the rebutting factors have so little to do with the
underlying reason for the presumption, one may further ask whether the
Quaak “presumption” is really only a strong factor to consider in the
anti-suit inquiry.
But even if Quaak uses comity only as a substantive consideration,
and not a presumption, a problem still lies in the fact that comity does
not appear, analytically, to be the same type of factor that the court
ordinarily takes into account in adjudicating equitable orders. An antisuit request confronts the court with two, sometimes three, conflicting
aims: to do equity between the parties, to promote certain national or
domestic policies, and to preserve comity. The challenge facing the
courts in the anti-suit injunction inquiry, as eloquently put by Circuit
Judge Selya, is that an inquiring court “must find a way to
accommodate conflicting, mutually inconsistent national policies
without unduly interfering with the judicial processes of a foreign
sovereign…[and] [t]his task is particularly formidable given the absence
of guidance from the Supreme Court….”99 The intersection of these
multiple, and sometimes conflicting, aims is difficult to resolve and is
made all the more difficult by the notion that the court should exercise
its equitable discretion in such a way as to minimize offense to a foreign
sovereign. To the common lawyer, this is somewhat peculiar. The
equitable roots of the injunction remedy serve only to reinforce the
uneasiness. Indeed, one would be hard pressed to think of any situation
in which a court sitting in equity is constrained in a similar way. It is no
wonder that the courts find it difficult to fashion rules for guiding its
equitable discretion in this fledging area of law.
The Quaak approach makes an already strange situation totally alien.
By placing the onus on the party seeking the injunction to adduce
equitable considerations to rebut it, it sets up comity as a presumption or
a very strong factor as the starting point of the anti-suit inquiry. In either
case, comity does not gel well with, and is difficult to balance against,
the other equitable considerations. Because comity does not operate on
the same analytical plane as the other equitable or policy considerations,
the Quaak approach of using comity substantively is not only
unfamiliar, but difficult to apply in practice.100
99. Quaak, 361 F.3d at 16.
100. One commentator observed that:
[I]t is thought that in some circumstances the need for an injunction is so overwhelming
that comity must give way. There is no doubt that in cases of concurrent proceedings,
vexation and oppression, and where the bringing of the action is a breach of contract or
otherwise unconscionable, there is a strong case for stopping the proceedings; but the
basic objection to antisuit injunctions is that the natural forum to decide such a question
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Indeed, courts can only totally avert an affront to comity by refusing
to issue anti-suit injunctions altogether.101 Even if good reasons exist to
issue them, the reality is that anti-suit injunctions do infringe comity.
One would not expect foreign courts to be any less offended simply
because United States notions of equity and domestic policy dictate that
its proceedings ought to be enjoined. The foreign courts would still
object to the injunction on the basis that regulating their proceedings is a
matter solely for them to decide. Unless the United States courts are
prepared to give up the anti-suit injunction remedy altogether, they must
not simply place the crude concept of comity statically on one end of
the scales to be balanced against other considerations, especially since
there are hardly any guidelines on how to perform this balancing
exercise. Nor is it enough simply to repeat the mantra that the courts
should be cautious not to infringe comity. The courts must address the
nub of the problem and answer the diametrically opposite question of
when international comity may be infringed. The approach advocated by
Quaak does little to shed light on this crucial issue.
VII. SUGGESTED TWO-STEP APPROACH TO THE ANTI-SUIT
INJUNCTION INQUIRY
The previous section discusses the practical and doctrinal difficulties
with the Quaak approach. Adopting a presumption against anti-suit
injunctions, or using comity as a substantive factor in the anti-suit
injunction inquiry, will only perpetuate the confusion. Although comity
is presently too uncertain a concept to play such a central role in a
sophisticated weighing process, the possibility of its fulfilling that role
in the future remains—provided the courts are willing to consider and
define its normative content. The problem is that the Quaak approach
does not compel the courts to do this, but instead allows them to
amalgamate an already uncertain concept with other equitable and
policy considerations against which comity cannot be easily analyzed.
This is not the way to develop the concept of comity.
A more principled solution is to approach an anti-suit injunction
is the court where the proceedings are taking place.
Trevor Hartley, Comity and the Use of Anti-Suit Injunctions in International Litigation, 35 AM. J.
COMP. L. 487, 506-07 (1987) (footnote omitted).
101. One commentator noted that “[a] reviewing court should concede that comity is likely to
be undermined in every instance in which a party to concurrent litigations requests a district judge
to enjoin the foreign proceeding, by virtue of the fact that the injunction deprives the foreign court
of jurisdiction.” Haig Najarian, Granting Comity Its Due: A Proposal to Revive the Comity-Based
Approach to Transnational Antisuit Injunctions, 68 ST. JOHN’S L. REV. 961, 984 (1994).
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motion in two stages. The court should first consider whether the
circumstances of the case require anti-suit relief. This focuses the
court’s mind, and its subsequent reasoning, on the equitable merits of
the case and involves the straightforward question of whether the
equitable circumstances of the case merit the relief sought, unfettered by
considerations of comity. In some cases, such a sequential approach
may simplify the court’s task. If the moving party fails to establish the
“prima facie equitable entitlement” for an anti-suit injunction, the court
need not go on to consider, at the second stage of the inquiry, whether
the entitlement warrants an infringement of comity.
This two-stage approach allows the courts to consider and develop
the equitable and policy considerations that form the very foundation for
anti-suit relief. Considering comity at the first stage only serves to
muddle the analysis. Insulating the equitable and policy considerations
will ensure that these considerations will be given adequate judicial
consideration, and the requirements for the equitable entitlement
properly developed. This way, whatever the issues surrounding comity,
the courts can at least clearly lay out how the moving party can establish
the equitable entitlement for anti-suit relief.
As far as comity is concerned, a two-stage approach is preferable to
the Q u a a k approach. By isolating comity from the equitable
considerations, the courts will be obliged to consider comity in isolation
in every case in which the moving party establishes the equitable
entitlement to an anti-suit injunction. Furthermore, because the comity
stands in isolation, without other distracting considerations, the courts
must focus on, and can better define and develop, the concept. The
courts can also distill the weight they ascribe to comity, simply by
measuring up comity against equitable and policy considerations
established in the first step of the inquiry.
The discipline of drawing a doctrinal distinction between the two
steps of the inquiry –analyzing the equitable and policy considerations,
and weighing these against comity—not only clarifies the individual
component concepts in the anti-suit inquiry, but also more fully
explicates the considerations at play in each of these two stages.
Compared with the Quaak approach, such an approach is certainly more
conducive to judicial development.
VIII.THE THRESHOLD REQUIREMENTS
Although the courts have traditionally been reluctant to limit the
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scope of the anti-suit injunction,102 the courts in Quaak and Paramedics
did not think that the remedy should have a potentially unfettered scope
of application. Both courts were in agreement that the first threshold
requirement was that the parties in both the enjoining and the
putatively-enjoined action must be the same. As to the second threshold
requirement, the Quaak court thought that the moving party must
demonstrate that both proceedings involved the same issues. In a
somewhat different formulation, the Paramedics court thought that to
obtain an anti-suit injunction against parallel proceedings, the moving
party had to show that the resolution of the case before the enjoining
court is “dispositive” of the action to be enjoined.103
These different formulations raise two important questions: (1) is
there any difference between the threshold requirements expressed in
Quaak and in Paramedics? and (2) will the courts issue anti-suit
injunctions only in cases involving parallel proceedings?
A.
The Requirement in Paramedics that the Resolution of the Case
Before the Enjoining Court Be “Dispositive” of the Action to Be
Enjoined
The Quaak court formulated the threshold test rather differently from
the Paramedics court, omitting the requirement that the enjoining action
be “dispositive” of the foreign one. It may well be that if the parties and
issues are the same, the enjoining action will also be “dispositive” of the
foreign action. But is this distinction without a difference?
This Article argues that the “dispositive” requirement has no place in
modern international anti-suit jurisprudence. The Quaak court, in
leaving out the “dispositive” requirement, departed from a long line of
cases employing it as either a threshold requirement or a factor in the
anti-suit inquiry.104 The origins of the “dispositive” requirement can be
102. In Castanho v. Brown & Root (U.K.) Ltd., [1981] A.C. 557, 573 (H.L.), Lord Scarman
noted that the “width and flexibility of equity are not to be undermined by categorisation.”
103. Paramedics Electromedicina Comercial, Ltda. V. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645, 652 (2d Cir. 2004), applied in LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194,
199-200 (2d Cir. 2004).
104. See, e .g., American Home Assurance Co. v. Insurance Corp. of Ireland, Ltd., 603 F.
Supp. 636, 643 (S.D.N.Y. 1984) (“[T]his court has adopted a two part test to determine whether
parties may be thus enjoined. Parties must be the same in both matters, and resolution of the first
action must be dispositive of the action to be enjoined.”) (citation omitted); Garpeg, Ltd. v.
United States, 583 F. Supp. 789, 798 (S.D.N.Y. 1984) (“The threshold question is whether the
parties are the same and resolution of the first action will be dispositive of the action to be
enjoined.”); Cargill, Inc. v. Hartford Accident & Indem. Co., 531 F. Supp. 710 (D. Minn. 1982)
(“The threshold question is whether the parties are the same in both actions, the issues are the
same, and resolution of the first action will be dispositive of the action to be enjoined.”) (citation
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traced back to Western Electric Co. v. Milgo Electronic Corp.,105 where
District Judge Aronovitz first stated the rule:
For the court to exercise its discretion [to enjoin the foreign
proceedings] in that regard (a) the parties in the two actions must
be the same; (b) the issues in the two actions must be the same;
and (c) the resolution of the first action must be dispositive of the
action to be enjoined.106
Two aspects of the court’s decision in Western Electric merit
discussion. For one, this case was the first reported case requiring the
initial set of proceedings to be “dispositive” of the second. More
importantly, the cases relied on by Judge Aronovitz as precedent were
entirely domestic in nature. The issue in those cases was whether a
district court might appropriately enjoin proceedings subsequently
instituted in another district court. The cases centered on the principle
stated in Crosley Corp. v. Hazeltine Corp.,107 where the Third Circuit
decided that a federal court that first obtains jurisdiction may preserve
its jurisdiction by enjoining proceedings subsequently commenced in
another federal court. The Third Circuit justified this rule on the basis of
efficient administration of justice:
It is of obvious importance to all the litigants to have a single
determination of their controversy, rather than several decisions
which if they conflict may require separate appeals to different
circuit courts of appeals. No party has a vested right to have his
cause tried by one judge rather than by another of equal
jurisdiction…. The party who first brings a controversy into a
court of competent jurisdiction for adjudication should, so far as
our dual system permits, be free from the vexation of subsequent
litigation over the same subject matter. The economic waste
involved in duplicating litigation is obvious. Equally important is
omitted); Medtronic, Inc. v. Catalyst Research Corp., 664 F.2d 660 (8th Cir. 1981) (“The parties
must be the same; the issue must be the same; and resolution of the first action must be
dispositive of the action to be enjoined.”) (citation omitted); Western Elec. Co. v. Milgo Elec.
Corp., 450 F. Supp. 835, 837 (S. D. Fla. 1978) (“For the Court to exercise its discretion in that
regard (a) the parties in the two actions must be the same; (b) the issues in the two actions must
be the same; and (c) the resolution of the first action must be dispositive of the action to be
enjoined.”) (citation omitted). The requirement was, of course, also stated in Paramedics, 369
F.3d at 653 and China Trade, 837 F.2d at 36, which the court in Paramedics relied on as
authority for the requirement.
105. 450 F. Supp. 835 (S.D. Fla. 1978).
106. Id. at 837 (citing Cresta Blanca Wine Co. v. E. Wine Corp., 143 F.2d 1012 (2d Cir.
1944); Triangle C & C Co. v. Nat’l Elec. Prod. Corp., 138 F.2d 46 (3d Cir. 1943)).
107. 122 F.2d 925 (3d Cir. 1941).
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its adverse effect upon the prompt and efficient administration of
justice. In view of the constant increase in judicial business in the
federal courts and the continual necessity of adding to the
number of judges, at the expense of the taxpayers, public policy
requires us to seek actively to avoid the waste of judicial time
and energy. Courts already heavily burdened with litigation with
which they must of necessity deal should therefore not be called
upon to duplicate each other’s work in cases involving the same
issues and the same parties.108
Viewed in its original (domestic) context, it is understandable how
District Judge Aronovitz could infer a requirement that the first set of
proceedings be dispositive of the proceedings to be enjoined. In a purely
domestic case, the courts should not allow a waste of expense and
judicial time if the federal court first seised of jurisdiction could dispose
of the entire matter itself—and if the second set of proceedings merely
duplicates the first. If the first action is dispositive of the subsequently
instituted action, the federal court first seised may properly issue an
anti-suit injunction to enjoin the second set of proceedings. On the other
hand, if the first action is not dispositive of the second, the second
action should be permitted to continue. In a domestic context, such a
rule makes perfect sense.
This logic does not carry through into the international context.109
Regardless of the merits of such a rule in the domestic context,110 the
“dispositive” requirement is inappropriate in the context of international
litigation. There are three reasons for this. First, the “dispositive”
requirement is grounded in weak authority. Judge Aronovitz cited two
cases supporting this requirement, but in neither did the court expressly
require “the resolution of the first action [to] be dispositive of the action
to be enjoined.”111 In fact, the requirement nowhere is to be found in any
108. Id. at 930.
109. Nevertheless, there may be a limited role for the “dispositive” requirement where at least
one of the parallel proceedings is an arbitral proceeding. In such a case, the arbitral proceeding
may be “disposed” by a judgment in certain national courts and vice-versa. But insisting on the
“dispositive” requirement, even in this limited context, seems to miss the point that it is not the
dispositive nature of the parallel proceedings that cries out for one set of proceedings to be
stopped, but rather the duplicative nature of such proceedings. Parallel proceedings are
duplicative when they involve the same parties and cover the same issues, not when one set of
proceedings would dispose of another.
110. Judge Maris described the domestic context as involving a “situation in which two
actions are pending in courts of equal dignity within the judicial system of a single sovereignty.”
Crosley, 122 F.2d at 929.
111. Western Elec., 450 F. Supp. at 837. Though admittedly, the cases did require the parties
and issues to be the same.
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of the cases upon which he relies. Second, Judge Aronovitz appears to
have adopted the until-then domestic “dispositive” requirement into the
international context, without considering whether applying the
requirement in the international context would be just as appropriate.112
Third, the term “dispositive” cannot accurately describe the threshold
requirement for an international anti-suit injunction. In an international
system comprised of different sovereign courts, it is unrealistic to
require that an action in any court be “dispositive” of proceedings in
another, since a domestic action can never be “dispositive” of foreign
proceedings.113 Indeed, if the enjoining court were capable, as the
threshold requirement suggests, of “disposing” of the matter, one
wonders what there is to be gained by issuing an anti-suit injunction.
For these reasons, the formulation in Quaak, which is shorn of the
requirement that the enjoining action be dispositive, is preferable to the
threshold requirements expressed in Paramedics.
B.
The Requirements that the Parallel Actions Involve the Same
Parties and Issues
It is puzzling that the courts would use threshold requirements to
limit the availability of an anti-suit injunction, especially since the
remedy’s attraction lies largely in its remedial flexibility. One would
have thought that the equitable nature of the remedy would require the
courts to consider all the circumstances, in every case, to determine the
appropriateness of an anti-suit injunction, instead of employing filtering
112. Indeed, Judge Aronovitz thought that the requirement was that “the resolution of the first
action [was] dispositive of the action to be enjoined.” Western Elec., 450 F. Supp. at 837
(emphasis added). This reference to the “first action” betrays the requirement’s domestic roots. In
international litigation, the mere fact that proceedings were commenced first in a United States
court does not, by itself, mean that an anti-suit injunction should be issued to restrain
subsequently instituted foreign proceedings. Laker Airways, Ltd. v. Sabena, Belgian World
Airlines, 731 F.2d 909, 929 n.63 (D.C. Cir. 1984) (“A general rule permitting the earlier filed
action to enjoin all subsequent actions would destroy the principle of concurrent jurisdiction.”);
cf. United Cigarette Mach. Co. v. Wright, 156 F. 244 (C.C.E.D.N.C. 1907); Gage v. Riverside
Trust Co., 86 F. 984 (C.C.S.D. Cal. 1898), (although these cases must be open to some doubt in
light of the reasoning in Laker Airways, which reasons that the order in which the proceedings
were commenced is not determinative of which action should be enjoined). Apparently, however,
“[w]hen the injunction is requested after a previous judgment on the merits, there is little
interference with the rule favoring parallel proceedings in matters subject to concurrent
jurisdiction.” Mutual Serv. Ins. Co. v. Frit Industries, Inc., 358 F.3d 1312, 1324 (11th Cir. 2004).
It will be argued that this rule was incorrectly applied in the appellate context in Paramedics. By
the time the court in Paramedics got to it, the requirement was rephrased in terms of whether the
enjoining action was dispositive of the action sought to be enjoined, but the requirement cannot
be made relevant to the international context simply by way of a semantic trick.
113. At least in the absence of a treaty to this effect.
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mechanisms having nothing to do with considerations that would
normally inhibit equitable remedies.
One solution might be to argue that the threshold requirements in
Quaak and Paramedics apply to limit anti-suit injunctions only in cases
involving parallel proceedings, but in no others. The Paramedics
exposition of the threshold requirements ostensibly deals only with antisuit injunctions “against parallel litigation,” without expressing any
view as to the threshold requirements in other cases.114 In the same vein,
it may be said that the Quaak court was only addressing its mind to
parallel litigation cases when it set out its view of the threshold
requirements and did not consider which threshold requirements, if any,
would apply in cases that do not involve parallel proceedings. There is,
therefore, a colorable argument that dicta in Quaak and Paramedics do
not preclude the courts from issuing anti-suit injunctions in cases that do
not involve parallel litigation, even if the threshold requirements in
Quaak and Paramedics are not met. But whether the courts should
accept this argument, and relax or forego the threshold requirements in
such cases, is ultimately a matter of policy, and one that this Article will
now consider.115
It is important to appreciate at the outset that the courts in Quaak and
Paramedics envisage anti-suit injunctions as something in the nature of
an international case management tool: the court will grant an anti-suit
injunction only if parallel proceedings are on foot both in the United
States and in a foreign court or tribunal. Should the power to grant antisuit relief be limited in this way? The English courts do not think so.
114. Or if there should even be any threshold requirement in those cases. In Paramedics, the
court thought that an anti-suit injunction “against parallel litigation may be imposed only if: (A)
the parties are the same in both matters, and (B) resolution of the case before the enjoining court
is dispositive of the action to be enjoined.” Paramedics, 369 F.3d at 652.
115. There may yet be some elasticity in the threshold requirements. In fact, there are signs
that the threshold requirements may not be as rigidly enforced as strictures in the cases suggest. In
Paramedics, the Second Circuit held that the district court did not abuse its discretion in ruling
that the parties to the two actions were “sufficiently similar” to satisfy the first threshold
requirement. Paramedics, 369 F.3d at 652. In that case, Tecnimed, the party against whom the
anti-suit injunction was issued, argued that the matters were not identical in the case before the
court. It argued that the party named as defendants in the Brazilian action (GE Brasil) was
different from the party in the New York action (GEMS-IT). The Second Circuit gave short shrift
to this argument, upholding the district court’s finding that there was “substantial similarity and
affiliation” between the two GE Brasil and GEMS-IT. Id. The court regarded as decisive the fact
that GE Brasil was named in the Brazilian action chiefly on the basis of its relationship with
GEMS-IT–it being undisputed that GEMS-IT and GE Brasil were part of the General Electric
group of companies. In addition, in LAIF X SPRL v. Axtel S.A. de C.V., 390 F.3d 194, 199-200
(2d Cir. 2004), the Second Circuit did not seem particularly concerned as to whether the threshold
requirements were met. 390 F.3d at 199-200. Of course, this may well be because the court there
chose to rely on other grounds to dispose of the appeal.
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“Single Forum” Cases Not Involving Parallel Litigation
The English courts have not employed the anti-suit injunction only to
prevent parallel proceedings. They issue anti-suit injunctions against
foreign proceedings where no English proceedings are on foot, and even
where the foreign proceedings involve a cause of action that could not
have been brought in England.116 In these cases, the anti-suit injunction
is an extreme remedy, since enjoining the foreign action will, at least in
theory, bar the plaintiff from seeking any relief whatsoever.117
The House of Lords and the English Court of Appeal considered
whether the court may properly issue an anti-suit injunction in singleforum situation in the Laker Airways litigation. In British Airways
Board v. Laker Airways Ltd.,118 the House of Lords held that an English
court may grant an anti-suit injunction to enjoin foreign proceedings
even if the action in the foreign courts could not have been brought in
England, provided the foreign action was so unconscionable as to
amount to an infringement of an equitable right.119 On the facts of the
case, the House of Lords refused to enjoin the U.S. proceedings,
reasoning that the British airlines were not entitled to an anti-suit
injunction because by carrying on business in the United States, the
British airlines subjected themselves to U.S. law—including U.S.
antitrust laws.120 The English Court of Appeal reached a different
conclusion on the facts of Midland Bank v Laker Airways Ltd,121
granting an anti-suit injunction to stop the liquidator of Laker Airways
from joining two British banks to U.S. antitrust proceedings. The
English Court of Appeal reasoned that it would be unconscionable and
unjust for an English plaintiff to sue these entities in the United States,
for activities carried out in England, on the basis of the extra-territorial
116. Although in such cases, the English courts normally require England to be the natural
forum for the dispute. See Lord Goff in Societe Nationale Industrielle Aerospatiale v. Lee Kui
Jak, [1987] A.C. 871, 896 (P.C.). His Lordship was reluctant to confine the anti-suit injunction
remedy in such a manner, noting extreme cases where, for example, the foreign court exercising
jurisdiction is such as to deprive it of the respect normally required by comity. See Airbus
Industrie G.I.E. v. Patel [1999] 1 A.C. 119, 140 (H.L.).
117. Andrew Bell notes that this is probably the reason why the English anti-suit injunction in
Midland Bank v. Laker Airways Ltd., [1986] 1 Q.B. 689 (Eng. C.A) received a hostile reaction
in the United States. BELL, supra note 2, at 177.
118. [1985] A.C. 58 (H.L.).
119. Id. at 81, 95. See generally, DICEY AND MORRIS, supra note 67, at 420-21.
120. British Airways Board, [1985] A.C. at 84; see also Smith Kline & French Laboratories
Ltd. v. Bloch, [1983] 1 W.L.R. 730 (Eng. C.A) (finding no basis to grant an injunction to an
American proceeding where the requesting party is not a party in that case).
121. [1986] 1 Q.B. 689 (Eng. C.A.).
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application of U.S. antitrust law.122
In time, U.S. courts will have to decide whether to follow the
approach of the English courts and to enjoin foreign proceedings, even
if they are unrelated to any domestic proceedings, and even where they
involve claims that U.S. courts will not themselves entertain.123 For
example, if foreign proceedings involve a restitutionary claim, whose
practical effect is to reverse damages awarded for antitrust violations in
United States courts, should the United States court issue an anti-suit
injunction to enjoin parties from pursuing such claims abroad?124 If the
United States courts acquiesce in foreign litigation of this nature, their
inaction may severely undermine the efficacy of federal statutes and
threaten important national policies. They should be prepared to issue
“protective” anti-suit injunctions to discourage foreign litigation of this
nature.
Enjoining unrelated foreign proceedings that adversely affect national
policies or the jurisdiction of the court may be analyzed as an aspect of
the court’s well-established jurisdiction to issue “protective” anti-suit
injunctions. Even under the narrower “conservative approach,”
“protective” interests, such as protection of the forum’s policies and
protection of the forum court’s jurisdiction, are strong reasons to resort
to the anti-suit remedy. If so, there is no reason why the United States
courts should only enjoin foreign proceedings that run in parallel. In
fact, it is certainly possible to envisage cases where parties agitate a
single set of foreign proceedings for the precise purpose of evading
122. Id. at 710, 715.
123. In this regard, the court in Dow Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d 394
(S.D.N.Y. 2002) noted:
With regard to the factor of public policies, the Second Circuit has instructed that an
injunction may be appropriate when a party seeks to evade important policies of the
forum state by commencing litigation in a foreign court. The Circuit Court stressed,
however, that while an attempt to evade compliance with laws of the forum state that
effectuate important public policies may justify a restraining order, such relief “is not
appropriate merely to prevent a party from seeking slight advantages in the substantive
or procedural law to be applied in a foreign court.” On this point, the [Laker Airways v.]
Sabena court elaborated that: “An impermissible evasion is much more likely to be
found when the party attempts to elude compliance with a statute of specific
applicability upon which the party seeking an injunction may have relied, and which is
designed to effectuate important state policies.”
Id. at 425 (quoting Laker Airways, 731 F.2d at 931 n. 73).
124. For an example of “clawback” legislation of this sort, see Protection of Trading Interests
Act, 1980, c. 11, § 6(2) (1982) (Eng.) which permits a “qualifying defendant,” against whom an
award of multiple damages was made, to recover from the party in whose favor the judgment was
given, the amount which exceeds the part attributable to compensation. Section 6(5) permits a
court in the United Kingdom to entertain proceedings on such claims, even if the party against
whom the proceedings are brought is not within the jurisdiction of the court.
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policies of the forum, or interfering with the jurisdiction of the forum
court. If the courts adhere to the threshold requirements outlined in
Quaak and Paramedics, they will be powerless to intervene—but only
because of the simple but illogical ground that the threshold requirement
is not met where foreign proceedings run singularly and not in parallel.
This cannot be right. When the courts decide whether to enjoin foreign
proceedings, the determinative characteristic must be the nature of those
proceedings, and not whether those proceedings are related to litigation
elsewhere. The courts should reconsider a threshold requirement that
prevents the courts from getting at the nub of the inquiry.
2.
Parallel Litigation Not Involving United States Proceedings
In addition, the United States courts may also have to consider
whether they would aid the courts of country X by enjoining a party
over whom they have in personam jurisdiction from prosecuting
proceedings in the courts of country Y.
The English courts would only provide such assistance where they
have a sufficient interest to do so. The House of Lords in Airbus
Industrie G.I.E. v. Patel125 had to decide:
[W]hether the English court will grant an anti-suit injunction in
circumstances where there is no relevant connection between the
English jurisdiction and the proceedings in question other than
that the defendants, who are resident in this country, are subject
to the jurisdiction and so can effectively be restrained by an
injunction granted by an English court.126
There, Airbus sought an anti-suit injunction from the English courts,
arguing that India was the natural forum for the dispute, and not Texas,
where proceedings had been commenced against them. The Indian
courts lacked personal jurisdiction over the claimants and were
therefore unable to grant effective injunctive relief to restrain the
claimants from pursuing their claim in Texas. The claimants were,
however, amenable to the jurisdiction of the English courts. As Lord
Goff observed, “Airbus is in effect seeking the aid of the English courts
to prevent the pursuit by the appellants of their proceedings in Texas,
which may properly be regarded as oppressive but which the Indian
courts are powerless to prevent.”127 The House of Lords refused to issue
the injunction. Lord Goff explained that the English court could only do
125. [1999] 1 A.C. 119 (H.L.).
126. Id. at 134.
127. Id. at 140.
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this where it had a sufficient interest in the matter:
[F]or the English court to come to the assistance of an Indian
court, the normal process is for the English court to do so by
enforcing a judgment of the Indian court. However, as the
present proceedings have demonstrated, that is not possible
here…. Airbus is relying simply on the English court’s power of
itself, without direct reliance on the Indian court’s decision, to
grant an injunction in this case where, unusually, the English
jurisdiction has no interest in, or connection with, the matter in
question. I am driven to say that such a course is not open to the
English courts because, for the reasons I have given, it would be
inconsistent with comity. In a world which consists of
independent jurisdictions, interference, even indirect
interference, by the courts of one jurisdiction with the exercise of
the jurisdiction of a foreign court cannot in my opinion be
justified by the fact that a third jurisdiction is affected but is
powerless to intervene. The basic principle is that only the courts
of an interested jurisdiction can act in the matter; and if they are
powerless to do so, that will not of itself be enough to justify the
courts of another jurisdiction to act in their place. Such are the
limits of a system which is dependent on the remedy of an antisuit injunction to curtail the excesses of a jurisdiction which does
not adopt the principle, widely accepted throughout the common
law world, of forum non conveniens.128
Accordingly, English courts will only issue anti-suit injunctions in
these “single forum” cases where, consistent with the demands of
comity, they have a sufficient interest in, or connection with, the matter
to do so.129
The United States courts have not decided whether, and in what
circumstances, they will assist a foreign court powerless to protect its
own jurisdiction. If the U.S. courts are the only courts with in personam
jurisdiction over the party prosecuting the foreign action, and therefore
the only court capable of granting effective anti-suit relief,130 would
128. Id. at 140-41.
129. Id. at 138; 1 DICEY AND MORRIS, supra note 67, at 419.
130. In LAIF X SPRL v. Axtel, S.A., 390 F.3d 194 (2d Cir. 2004), the court did not consider
the point, and did not seem to think that it mattered that there were no substantive proceedings in
the United States when it was asked to issue an anti-suit injunction against Mexican proceedings
in support of arbitration proceedings. (It affirmed, however, the district court’s refusal to issue an
anti-suit injunction on other grounds.) But LAIF X may suggest that the U.S. courts might require
some interest before it will intervene, as the English courts do. This point will be further
discussed in the next section.
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comity permit them to assist a foreign court by intervening with an antisuit injunction? Again, the threshold requirement in Quaak and
Paramedics would preclude the court from even considering this
question. This in turn raises the question of whether the courts have
prematurely confined their discretion by adopting overly-restrictive
threshold requirements, even before considering the full implications of
doing so.
As international litigation evolves, a multitude of unforeseen
situations will present themselves. In yet-unpresented, novel, and
extreme cases, United States courts may want to use an anti-suit
injunction (1) to enforce their perceptions of where litigation ought to
take place, (2) to protect certain overriding national polices, or (3) to
protect their own jurisdiction. They may want to use the anti-suit
injunctions to assist foreign courts in achieving these same goals. The
courts would be prudent not to prematurely straightjacket their
discretion to issue anti-suit injunction with over-restrictive threshold
requirements. Perhaps the courts should recast these requirements into
general guidelines applicable to the majority of cases, while preserving
the flexibility to intervene in extreme cases, even if these guidelines are
not met.
IX. SUFFICIENT INTEREST TO INTERVENE AND INTEREST ANALYSIS:
AN EVOLVING “REQUIREMENT” IN THE UNITED STATES?
Looking forward, the courts should express new restrictions on the
remedy as considerations within the rubric of the anti-suit inquiry itself,
instead of effecting these restrictions by way of threshold requirements
that oblige the court to mechanically dismiss the anti-suit request
without considering any other aspect of the case. There are signs that
the United States courts will do so in relation to new limitations they
wish to place on the anti-suit remedy.
In particular, United States courts may, if requested to enjoin parallel
proceedings, adopt the reasoning of the English courts and limit their
ability to intervene to cases where they have a sufficient interest to do
so. In LAIF X, the Second Circuit upheld the district court’s refusal to
issue an anti-suit injunction in aid of arbitral proceedings, partly
because the United States courts had “no interest in enjoining Telinor’s
Mexican lawsuit.”131 The Second Circuit opined that “the legal
relationship between a Belgian investor and a Mexican enterprise in no
131. LAIF X, 390 F.3d at 200.
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way implicates ‘the strong public policies of the enjoining forum.’”132
Instead, it was the Mexican courts that had a “strong interest” over a
dispute with a decidedly Mexican flavor involving a point of Mexican
law.133 This dicta suggests that the United States courts will not enjoin
foreign proceedings when the dispute has no connection to the United
States sufficient to give its courts an interest warranting intervention.
But the LAIF X “no interest” approach may also be analyzed as
follows: The United States courts will engage in some form of
comparative interest analysis, and will not enjoin proceedings in courts
that have a greater interest in the matter. But, on this alternative view,
the United States courts will still enjoin foreign proceedings in courts
that have a lesser interest in the matter. In other words, under the LAIF
X approach, the United States courts will compare the relative interests
of the courts involved (including its own), and will intervene in a
manner that supports the jurisdiction of the court with the greatest
interest in the matter. It remains to be seen which, if either,
interpretation future courts will place on dicta in LAIF X.
X.
PROPOSED SOLUTIONS
Quaak may herald a trend of heightened sensitivity to comity
concerns and a more cautious approach to issuing anti-suit injunctions.
But if, as this Article contends, the courts find it difficult to use comity
as a substantive device to navigate the anti-suit injunction inquiry, they
might wish to consider two proposals.
The first proposal mitigates the uncertainty of comity by developing
specific categories of cases that would ordinarily warrant anti-suit relief.
This involves developing category-based case law, by grouping anti-suit
cases involving similar policy considerations, to guide the courts on the
appropriateness of anti-suit relief in other cases involving similar policy
considerations. The second proposal seeks to curb the impact of antisuit injunctions on comity by distinguishing between the various
sanctions that flow from the breach of an anti-suit injunction order, and
discarding the contempt consequence of breaching such orders.
A.
Developing Specific Categories of Cases Where Anti-Suit
Injunctions Would Ordinarily Issue
The courts might wish to develop an approach that focuses on the
132. Id. (citing Paramedics, 369 F.3d at 652).
133. Id.
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specific circumstances under which anti-suit injunctions have been
deemed appropriate (or inappropriate), and group similar cases into
broad policy-based categories. This concretizes the anti-suit inquiry by
shifting the focus from abstract notions of comity to more specific
contextual policy considerations.
There are sound reasons for adopting such an approach. If comity is
nothing more than the respect that domestic courts should afford foreign
ones, one may speculate that the amount of respect and deference
accorded to each foreign country should be of relatively similar
weight.134 If this is so, even though the precise content of comity is
difficult to ascertain, the weight that should be accorded to comity may
to some degree be unearthed by gauging it against other policy
concerns. It might be possible to say, with some confidence, that the
policy concerns prevalent in certain categories of cases will ordinarily
trump the concerns of comity, with the result that anti-suit injunctions
should typically be issued in those cases. Conversely, there will also be
categories in which the policy factors supporting an injunction are so
weak that the injunction should almost never be granted.
If the real “comity” issue is whether the equitable circumstances and
policy concerns justify the affront to comity, a more germane approach
may be to develop case law along these policy-based categories. The
courts can categorize cases according to the policy considerations
involved, and decide if the attendant policy concerns in each of these
categories would ordinarily outweigh the concerns of comity, such as to
permit the grant of an anti-suit injunction. The courts may then draw on
these categories for guidance as to whether an anti-suit injunction
should be granted, instead of relying on a concept such as comity, which
provides hardly any guidance at all on this issue.
1.
Possible Objections
There is no reason why the courts should not undertake this task of
meaningful categorization.135 Developing guidelines according to
134. The amount of de ference mandated by comity cannot vary according to the particular
foreign court in question. Unless the courts are prepared to engage in the very political and
potentially embarrassing rating of foreign relations of the United States with other countries, the
amount of international comity afforded to every foreign court should generally be the same,
regardless of the country involved. In addition, it is doubtful that anti-suit injunctions actually
harm international relations. In Philips Medical Systems International B.V. v. Bruetman, 8 F.3d
600 (7th Cir. 1993), Judge Posner sought to further justify the grant of an anti-suit injunction on
the basis that an injunction would not jeopardize amicable relations between the United States
and Argentina. Id. at 605.
135. To some extent, there has been some attempt at categorization. For example, the
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specific categories should not be regarded as restricting the remedy to
only those situations. Neither should it be suggested that all anti-suit
injunction cases can or should be elegantly and exhaustively
pigeonholed into neat categories. On the contrary, the flexibility of the
remedy ought not be restricted by overzealous categorization. The
courts should therefore not mechanically issue or deny an anti-suit
injunction just because their particular case falls within or outside of
one of the categories. These categories are merely guidelines.
Neither will comity be given any less consideration. Rather, under the
categorization approach proposed, comity would already have been
given full consideration in resolving the policy-comity conflict—an
exercise that the courts need to carry out before categorizing the antisuit cases. The idea is that once the policy-comity balance is struck,
future courts need not, and should not, reevaluate and reweigh the
policy and comity considerations afresh. If the courts adhere to the
policy-comity balance, they will have some indication of whether an
anti-suit injunction may appropriately be issued in cases within those
and similar policy-based categories. The courts will also begin to
develop a better idea of the weight of equitable circumstances and
policy considerations needed to change the default result in these
categories. This approach frees the courts to focus on the specific nonpolicy considerations of the case (for example, the procedural posture of
the case, matters of convenience and other equitable considerations),
without being bogged down by comity and other policy concerns.
2.
Illustrative Categories
This Section will briefly illustrate how the proposed approach may be
applied to certain policy-based categories.
landmark “liberal standard” case of In re Unterweser Reederei, GmbH., 428 F.2d 888, 890 (5th
Cir. 1970), aff’d on reh’g per curiam, 446 F.2d 907 (5th Cir. 1971), vacated on other grounds sub
nom. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), outlined four situations in which
an anti-suit injunction would be appropriate: “where the foreign litigation would: (1) frustrate a
policy of the forum issuing the injunction; (2) be vexatious or oppressive; (3) threaten the issuing
court’s in rem or quasi in rem jurisdiction; or (4) where the proceedings prejudice other equitable
considerations [sic].” Contrast this with the main case enunciating the “stricter standard,” Laker
Airways, 731 F.2d 909. The court in Gau Shan rejected the Unterweser outline and followed the
Laker standard. 956 F.2d at 1353. According to the stricter standard, the court will only issue an
anti-suit injunction where it is necessary to protect the jurisdiction of the court or some important
public policy of the domestic forum. A commentator has observed that anti-suit injunctions have
generally been issued for “one of three broadly stated objectives: the prevention of high ly
inconvenient or vexatious litigation, the vindication of a prior and independent obligation not to
sue, and the preservation of the enjoining court’s own jurisdiction or other local policy-based
need to forestall foreign judicial proceedings.” Bermann, supra note 2, at 608.
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a.
Anti-Suit Injunctions in Aid of Arbitration Agreements
i.
The Federal Policy in Favor of Arbitration: Paramedics and
LAIF X
327
The federal policy in favor of arbitration may compel the courts to
use anti-suit injunctions to enforce agreements to arbitrate. In
Paramedics, the First Circuit stopped just short of saying that the
federal policy of upholding arbitration agreements meant that attempts
to evade arbitration would alone warrant an anti-suit injunction.136
While noting that it did not need to “decide whether an attempt to
sidestep arbitration is alone sufficient to support a foreign anti-suit
injunction,”137 the First Circuit held that the federal policy favoring the
liberal enforcement of arbitration clauses “applies with particular force
in international disputes”138—strongly suggesting that the federal policy
was so compelling that, but for the additional factors favoring the antisuit injunction, the court would have had to consider whether the federal
policy would alone have attracted anti-suit relief.
Even so, the decision in Paramedics to grant anti-suit relief may be
attributed entirely to the federal policy. This is because the additional
reasons ostensibly relied on by the Paramedics court added hardly any
force to its reasoning. The court regarded itself as absolved from
“categorically” deciding the federal policy issue because, in their words,
“there is less justification for permitting a second action…after a prior
court has reached a judgment on the same issues.”139 The court appeared
to take the position that, quite aside from the federal policy, the anti-suit
injunction was appropriate to protect the court’s jurisdiction:140
An anti-suit injunction may be needed to protect the court’s
jurisdiction once a judgment has been rendered. The doctrine of
res judicata, where applied, may obviate injunctive relief against
re-litigation in a second forum; but a foreign court might not give
res judicata effect to a United States judgment, particularly since
United States courts “may choose to give res judicata effect to
foreign judgments on the basis of comity,” but “are not obliged”
to do so….
This reasoning is unconvincing and does little to substantiate the
136.
137.
138.
139.
140.
Paramedics, 369 F.3d at 654.
Id.
Id.
Id. (quoting Laker Airways, 731 F.2d at 928 n.53).
Id.
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grant of the anti-suit injunction. When the Paramedics court spoke of
(1) the court whose jurisdiction the anti-suit injunction may be needed
to protect, and (2) a prior court reaching a judgment on the same issues,
it seemed to have in mind the United States District Court for the
Southern District of New York141—the court from which the appeal
emanated. That district court had issued an order compelling arbitration
and directing Tecnimed to take steps to end the Brazilian action.
But when an appellate court reviews a lower court’s grant of an antisuit injunction, the appellate court cannot presume the correctness of the
lower court’s decision to justify its own decision to affirm. By deeming
the lower court’s judgment one that should be protected with an antisuit injunction, and necessarily presuming its correctness in the process,
the Second Circuit not only fails to review the district court’s decision,
but is also bootstrapping its own. The Second Circuit did this again
when it held that “where one court has already reached a judgment—on
the same issues, involving the same parties—considerations of comity
have diminished force.”142 The upshot of this reasoning is that anti-suit
injunctions have lower thresholds of issuance on appeal, and for no
reason other than that the lower court had already decided issues
overlapping with those before the foreign court.143 The Paramedics
reasoning that the lower court’s decision in itself results in comity
having diminished force also results in the absurd situation in which
anti-suit injunctions would be very difficult to overturn on appeal. There
is also some doubt as to whether this principle applies where the
“judgment” at hand is an anti-suit injunction order.144
If the lower court’s decision is incorrect, particularly if the decision
also involves an unwarranted anti-suit injunction, the appellate court
should correct the situation by overturning both the decision and the
141. Magistrate Judge Eaton presided.
142. Paramedics, 369 F.3d at 655.
143. On the facts of Paramedics itself, however, the Second Circuit did not issue a fresh
injunction, but merely affirmed the lower court’s grant of one. Id. at 658. Nevertheless, this is the
logical extension of the reasoning adopted by the Second Circuit.
144. This is quite aside from the fact that Judge Wilkey in Laker Airways was clearly
referring only to a “previous judgment on the merits,” and may not have had orders such as antisuit injunction orders in mind when he made the point. Laker Airways, 731 F.2d at 928. Judge
Wilkey explained that: “There is less justification for permitting a second action after a prior
court has reached a judgment on the same issues. The parallel proceeding rule applies only until
one court reaches a judgment that may be pled as res judicata in the other.” Id. at 928, n.53. This
is because when a judgment is reached in a jurisdiction which can be pled as res judicata in
another, the parallel proceedings need no longer be allowed to proceed. Id. at 926-27. It is
unlikely that the “anti-suit injunction” judgment issued by the district court in Paramedics was a
judgment capable of being pled as res judicata overseas. This is a second reason why the Second
Circuit should not have regarded the district court’s decision as diminishing concerns of comity.
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grant of the injunction. What the appellate court must not do is affirm
the anti-suit injunction already granted, or even issue an anti-suit
injunction itself, reasoning that the lower court’s decision somehow has
the effect of diminishing considerations of comity. Whatever the merits
of that line of reasoning, and even if it applies to anti-suit injunction
orders, this reasoning cannot apply in the appellate context. The whole
point of an appeal is to consider if the lower court’s decision was
correct to begin with. The reviewing court cannot adopt a line of
reasoning premised upon the correctness of the lower court’s decision,
since this is the very question that the reviewing court is called upon to
decide.
Analytically speaking, there remains but one basis for the court’s
decision to affirm the anti-suit injunction—the federal policy in favor of
arbitration. Other references in Paramedics suggest that the court’s
decision was strongly influenced by that policy. If this is right,
Paramedics constitutes very persuasive authority that the federal policy
may demand that the United States courts grant anti-suit injunctions to
restrain breaches of agreements to arbitrate.145
The Second Circuit case of LAIF X provides further, albeit qualified,
support for this proposition. The Second Circuit described the federal
policy as a “salient consideration,” and observed that “an anti-suit
injunction may be proper where a party initiates foreign proceedings in
an attempt to sidestep arbitration.”146 However, the Second Circuit
refused to enjoin the Mexican proceedings purportedly commenced in
breach of the arbitration clause because (1) the Mexican lawsuit was not
directed at sidestepping arbitration and (2) the United States federal
courts did not have an interest to enjoin the Mexican proceedings in that
case.147
Accordingly, LAIF X suggests that, quite aside from concerns of
145. The decision of the Fifth Circuit in Karaha Bodas Co. v. Negara, 335 F.3d 357 (5th Cir.
2003) may appear to stand in the way of such a proposition. There, the court, in deference to
comity, reversed an anti-suit injunction which sought to prevent the appellant from continuing
with its action to annul a Swiss arbitration award in the Indonesian courts. It should be noted,
however, that the issue which the Fifth Circuit faced—whether to permit annulment proceedings
in a foreign court—is different from the issue of whether to specifically enforce an arbitration
agreement by way of an anti-suit injunction. In the first case, the court should rightly not enjoin
the foreign annulment proceedings as a matter of course, since there is no federal policy against
concurrent annulment and enforcement proceedings (after the parties have already arbitrated their
dispute). In the latter case, there is a strong federal policy in favor of enforcing the agreement of
the parties to arbitrate, and the courts should, as a matter of course, issue anti-suit injunctions
against proceedings commenced in breach of such agreement.
146. LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 199 (2d Cir. 2004) (internal
quotations omitted).
147. Id. at 200.
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comity, two other grounds may limit the court’s ability to uphold an
arbitration agreement with an anti-suit injunction. The first ground looks
at the intentions of the party commencing the parallel court proceedings.
In fact, the Second Circuit emphasized that Telinor, the party
commencing Mexican court proceedings, did so only for the limited
purpose of challenging arbitrability—a point governed by Mexican
law—and had otherwise submitted and continued to participate in the
arbitral proceedings.148 The first ground seems limited in scope and
presumably will not deter the courts from enjoining court proceedings,
commenced in breach of an arbitration agreement, to decide the merits
of an arbitrable dispute. Only where the party commencing court
proceedings still evinces an intention to resolve the dispute, according
to the terms of the arbitration agreement, will this ground disincline the
court from enjoining those court proceedings.
The second ground has a potentially wider scope of application. At its
broadest, it suggests that despite all that was said about the federal
policy in favor of arbitration in both Paramedics and LAIF X, the
federal policy would not alone substantiate the grant of an anti-suit
injunction, unless the matter also implicates some other national policy
of the United States—thus presumably giving the United States courts
an “interest” to intervene. In other words, the federal policy will not
alone provide the necessary interest for the courts to issue anti-suit
injunctions. Some other ground is needed.
Several arguments could be made that the Second Circuit could not
have intended to limit the court’s power in this way, such that they will
only enforce arbitration agreements with anti-suit injunctions when they
have some other interest on which to intervene. First, the “no interest”
ground was only one of three grounds the court used to justify its
decision. There is no suggestion that it would alone have been a
sufficient ground to refuse an anti-suit injunction. Second, the “no
interest” ground could simply be a finding by the district court reviewed
for abuse of discretion—the Second Circuit did not intend to lay down
such a legal rule, but simply found no basis to overturn the district
court’s exercise of discretion. Third, this interpretation is difficult to gel
with other statements in Paramedics, and in LAIF X itself, on the
importance of the federal policy. It would be startling if the courts
emphasized the policy as much as they did, only to say that it would not
provide them with a strong reason to issue an anti-suit injunction.
Fourth, it is difficult to see what interest the Second Circuit had in
148. Id.
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Paramedics, over and above that in LAIF X , which would have
permitted it to issue the anti-suit injunction in Paramedics, but not in
LAIF X. Fifth, the Second Circuit saw the issue as whether LAIF X
could properly commence the arbitration as a shareholder in the first
place, since Telinor’s argument was that the assignment of shares to
LAIF X was invalid. Because this issue was governed by Mexican law,
and for this reason should be decided by the Mexican courts, the Second
Circuit did not think that it had an interest permitting it to enjoin
Mexican proceedings aimed at determining whether the arbitration was
commenced by the proper parties. This suggests that courts may be
reluctant, on the “no interest” ground, to enjoin foreign proceedings
which attack the foundation of the arbitration itself, but they would not
hesitate to enjoin other disputes that clearly fall within the scope of the
arbitration agreement. These arguments suggest that the Second Circuit
did not intend to lay down a rule that the courts should have an
additional interest over and above the federal policy, before they can use
anti-suit injunctions to enforce arbitration agreements. The federal
policy in favor of upholding arbitration agreements will alone suffice in
most cases to ground anti-suit relief.
ii.
English Cases Enforcing Arbitration Agreements by Way of an
Anti-Suit Injunction
There is little doubt in England that an anti-suit injunction is the
“usual” remedy for breaches of arbitration agreements. The English
courts regularly issue anti-suit injunctions to specifically enforce these
agreements. In The Angelic Grace, Lord Justice Millet opined that it
was time to lay aside the “ritual incantation” that anti-suit injunctions
should only be used sparingly and with great caution. He saw “no good
reason for diffidence in granting an injunction to restrain foreign
proceedings [brought in breach of an arbitration clause] on the clear and
simple ground that the defendant has promised not to bring them.”149
More recently, in Welex AG v. Rosa Maritime Limited,150 the English
Court of Appeal upheld the decision of Justice David Steel in the
Commercial Court, and granted an anti-suit injunction “to enforce the
149. Aggeliki Charis Compania Maritima S.A. v. Pagnan S.p.A. (The Angelic Grace), [1995]
1 Lloyd’s Rep. 87, 96 (Eng. C.A.); see also XL Insurance Ltd. v. Owens Corning, [2000] 2
Lloyd’s Rep. 500 (Eng. Q.B.D. Comm. Ct.); Bankers Trust Co. v. P.T. Jakarta Int’l Hotels &
Dev., [1999] 1 Lloyd’s Rep. 910 (Eng. Q.B.D. Comm. Ct.); Toepfer Int’l GmbH v. Cargill France
S.A., [1997] 2 Lloyd’s Rep. 98 (Eng. Q.B.D. Comm. Ct.); DICEY AND MORRIS, supra note 67, at
449 (citing Phillip Alexander Securities & Futures Ltd. v. Bamberger, [1997] I.L.Pr. 73, 92, 101
(Eng. C.A.)).
150. [2003] 2 Lloyd’s Rep. 509 (Eng. C.A.).
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contractual bargain that there should be arbitration in London.”151 In
Lord Justice Tuckey’s words, “the starting point is, as the Judge said,
that the party suing in the non-contractual forum must show strong
reasons for [breaching arbitration clauses] or he faces the prospect of an
injunction being granted against him.”152 The court in Through
Transport Mutual Insurance Association (Eurasia) Ltd. v. New India
Assurance Co. Ltd.,153 regarded Welex A.G. as having applied the
English approach of ordinarily issuing an injunction to restrain the
breaches of an exclusive jurisdiction clause to breaches of arbitration
clauses and, in that case, similarly granted an anti-suit injunction to
restrain proceedings brought in breach of an agreement to arbitrate.
The next section examines the merits of this approach, together with
the merits of using anti-suit injunctions to restrain breaches of forum
selection agreements.
b.
Anti-Suit Injunctions in Aid of Forum Selection Agreements
The English courts adopt an equally robust approach in relation to
forum selection agreements and will typically issue anti-suit injunctions
to enjoin proceedings brought in breach of such clauses.154 In Sohio v.
Gatoil,155 Lord Justice Staughton justified the grant of an anti-suit
151. [2002] 2 Lloyd’s Rep. 701, para. 23.
152. [2003] 2 Lloyd’s Rep. 509, 518, para. 48.
153. [2004] 1 Lloyd’s Rep. 206.
154. Comments in this section are restricted to the English common law position of issuing
injunctions to restrain breaches of forum selection clauses. In the context of the European
Conventions (Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1968 (as amended by the Accession Conventions of 1978, 1982 and 1989)),
these cases must now be read in light of Case C-116/02, Erich Gasser GmbH v. MISAT Srl
(E.C.R. 2003); Case C-159/02, Turner v. Grovit, (E.C.R. 2004), and others. In Erich, the
European Court of Justice held that in cases that involve parties to the Convention, and which
concern the same facts and the same parties, the court second seized must decline jurisdiction,
even if it is the forum expressly chosen by the parties and even where the court first seized had
taken an inordinate amount of time to rule on its jurisdiction. This effectively overrules
Continental Bank NA v. Aekos Cia Naviera SA, [1994] 1 W.L.R. 588 (Eng. C.A.), on the point
that Article 17 of the Convention took precedence to Article 21, so that an exclusive jurisdiction
clause would defeat proceedings in another Member State, notwithstanding those proceedings
having started first. (Note that Articles 17 and 21 have now been re-numbered by the Brussels
Regulation to Articles 23 and 27 respectively. The Brussels Regulation came into force on 1 Mar.
2002). In Turner, the European Court of Justice placed further limitations on the ability of the
courts of a Convention state to issue anti-suit injunctions when it essentially ruled that an anti-suit
injunction was inconsistent with the Brussels Convention framework. Nevertheless, nothing in
these cases affects cases that fall outside the Convention, nor do they change the position with
regard to arbitration clauses. The traditional common law rules governing the anti-suit injunction
still apply in those cases. It is these common law rules that this Article will discuss and that the
United States courts should consider.
155. [1989] 1 Lloyd’s Rep. 588, 592 (Eng. C.A.).
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injunction on the basis that the act of continuing foreign proceedings in
breach of contract “may well in itself be vexatious and oppressive.” In
Continental Bank v. Aekos,156 a case decided in the context of the
Brussels Convention, Lord Justice Steyn considered it “decisive” that
the proceedings amounted to a breach of contract, and regarded such
proceedings as a “paradigm” case for the grant of an injunction.
This approach has been endorsed by the House of Lords. Lord
Bingham in Donohoe v. Armco, Inc.,157 explained the stance of the
English courts. In the absence of strong reasons, the English courts will
ordinarily restrain foreign proceedings commenced in breach of forum
selection (jurisdiction) agreements:
If contracting parties agree to give a particular court exclusive
jurisdiction to rule on claims between those parties, and a claim
falling within the scope of the agreement is made in proceedings
in a forum other than that which the parties have agreed, the
English court will ordinarily exercise its discretion (whether by
granting a stay of proceedings in England, or by restraining the
prosecution of proceedings in the non-contractual forum abroad,
or by such other procedural order as is appropriate in the
circumstances) to secure compliance with the contractual
bargain, unless the party suing in the non-contractual forum (the
burden being on him) can show strong reasons for suing in that
forum. I use the word “ordinarily” to recognize that where an
exercise of discretion is called for there can be no absolute or
inflexible rule governing that exercise, and also that a party may
lose his claim to equitable relief by dilatoriness or other
unconscionable conduct. But the general rule is clear: where
parties have bound themselves by an exclusive jurisdiction
clause effect should ordinarily be given to that obligation in the
absence of strong reasons for departing from it. Whether a party
can show strong reasons, sufficient to displace the other party’s
prima facie entitlement to enforce the contractual bargain, will
depend on all the facts and circumstances of the particular
case.158
Lord Hobhouse emphasized that cases which involve forum selection
agreements stand on a different footing from those that do not:
The position of a party who has an exclusive English jurisdiction
156. [1994] 1 Lloyd’s Rep. 505, 512 (Eng. C.A.).
157. [2002] 1 Lloyd’s Rep. 425 (H.L.).
158. Id. at 432, para. 24.
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clause is very different from one who does not. The former has a
contractual right to have the contract enforced. The latter has no
such right. The former’s right specifically to enforce his contract
can only be displaced by strong reasons being shown by the
opposite party why an injunction should not be granted. The
latter has to show that justice requires that he should be granted
an injunction.159
Thus, unless the breaching party can show strong reasons to displace
the prima facie entitlement, the English courts will ordinarily grant an
injunction to restrain the breach of an exclusive English forum selection
or arbitration clause.160 They regard cases involving foreign proceedings
brought in breach of a forum selection or arbitration agreement, as
instances of a legal or equitable right not to be sued—rights that the
courts will specifically enforce with an injunction.161 This is nothing
159. Id. at 439, para. 45.
160. This proposition is clear at least in relation to arbitration clauses in general and forum
selection clauses in favor of the English courts. It may well be that the English courts will
demand that the forum selection clause be in favor of England in order to give the court sufficient
interest to intervene by way of an anti-suit injunction, by analogy with the requirement that the
English court should have some interest in the matter before it can intervene by way of an antisuit injunction. See Airbus Industrie G.I.E. v. Patel, [1999] 1 A.C. 119 (H.L.). There are signs that
this may be an approach that the United States courts might adopt. The Second Circuit in LAIF X
upheld the district court’s refusal to grant an anti-suit injunction in part because the United States
federal courts did not have an interest in enjoining the Mexican action in that case. 390 F.3d at
200. See also Stephen Males, Comity and Anti-suit Injunctions, [1998] L.M.C.L.Q. 543, 547
(observing that the courts do not exercise anywhere near the same degree of caution in issuing
anti-suit injunctions where the foreign proceedings are pursued in breach of contract). In Turner
v. Grovit, [2002] 1 W.L.R. 107, paras. 25-27 (H.L.), Lord Hobhouse stated that:
Under English law, a person has no right not to be sued in a particular forum, domestic
or foreign, unless there is some specific factor which gives him that right. A contractual
arbitration or exclusive jurisdiction clause will provide such a ground for seeking to
invoke the right to enforce the clause…. The applicant for a restraining order must have
a legitimate interest in making his application and the protection of that interest must
make it necessary to make the order. Where the applicant is relying upon a contractual
right not to be sued in the foreign country (say because of an exclusive jurisdiction
clause or an arbitration clause), then, absent some special circumstance, he has by
reason of his contract a legitimate interest in enforcing that right against the other party
to the contract. But where he is relying upon conduct of the other person which is
unconscionable for some non-contractual reason, English law requires that the
legitimate interest must be the existence of proceedings in this country which need to be
protected by the grant of a restraining order.
161. Breaches of express agreements not to litigate in foreign courts are probably regarded by
English courts as legal rights not to be sued. “Lord Diplock then suggested that an equitable right
not to be sued would exist where a party had an equitable defence under English law such as
estoppel, election, waiver, laches or ‘blowing hot and cold’—all of which, could result in what
could generically be described as ‘unconscionable conduct.’” BELL, supra note 2, at 183 (quoting
British Airways, [1985] A.C. 58, 81).
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novel. As Andrew Bell notes, “the use of an injunction in this context
bears the familiar mark of equity intervening to restrain the breach of a
negative stipulation or covenant.”162
If the federal policy in favor of arbitration in fact compels the United
States courts to restrain breaches of agreements to arbitrate, their
willingness to uphold private dispute resolution agreements by granting
specific relief must also extend to cases where the agreement breached
is a forum selection clause—a contractual provision analogous to an
arbitration clause, in that both purport to preclude recourse to certain
courts.
There are signs that the United States courts may adopt such an
approach. Already, the New York courts appear willing to use anti-suit
injunctions to restrain breaches of forum selection clauses. In Indosuez
International Finance, B.V. v. National Reserve Bank,163 the Appellate
Division of the Supreme Court of New York held that the lower court
could properly grant a permanent injunction against the defendant’s
pursuit of foreign litigation commenced in breach of a forum selection
clause. The appellate division opined that an anti-suit injunction in these
circumstances was “consonant with our policy of enforcing choice of
law and forum selection clauses,”164 and specifically noted that foreign
litigation was commenced “in the face of []mandatory choice of law and
forum selection clauses”; and also in the face of a clear court of appeals
ruling that neither Russian law nor a Russian forum could appropriately
be used to litigate the underlying dispute.165 For these reasons, the
appellate division did not think that there was any possibility of treading
on the legitimate prerogatives of those foreign jurisdictions, nor that
comity would be implicated by the issue of an anti-suit injunction.
These are perhaps issues for another day but, as the English cases
demonstrate, if the United States courts decide that forum selection and
arbitration clauses may be specifically enforced by way of an anti-suit
injunction, it is entirely possible to develop clear rules outlining the
circumstances under which anti-suit injunctions would be available to
restrain breaches of such clauses. The policy clash between holding the
parties to their agreement and certainty of forum on the one hand, and
comity on the other, need not be replayed each time the issue arises.
Indeed, the English courts no longer do this, and will typically issue
anti-suit injunctions to restrain breaches of such agreements, unless the
162.
163.
164.
165.
Id.
304 A.D. 2d 429 (N.Y. App. Div. 2003)
Id. at 430.
Id.
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breaching party can show strong reasons not to. There is no reason why
the United States courts cannot achieve similar clarity.
c.
Cross-Border Insolvency
The evolving area of cross-border insolvency presents another fertile
area for developing category-centered case law. In cases involving
cross-border insolvency, the moving party may request an anti-suit
injunction to prevent the creditors of an insolvent corporation from
instituting parallel proceedings elsewhere—since these proceedings
would undermine the policy goal of having all the creditors’ claims
collectively adjudicated by a single bankruptcy court.166 At the most
basic level, there are two policy concerns: the policy of having
bankruptcy claims collectively adjudicated in an orderly manner and the
policy of avoiding the affront to comity that would result if an anti-suit
injunction were issued. According to the suggested approach, if the
courts decide that the policy of orderly distribution of assets to creditors
overrides the need to uphold comity, the United States courts should
ordinarily support the jurisdiction of one that they determine should
administer the estate, by issuing anti-suit injunctions against other
proceedings which threaten to undermine this policy goal.
This is precisely what the French Cour de Cassation167 did in Banque
Worms v. Epoux Brachot.168 There, in a decision not governed by the
European Union Regulation on Insolvency Proceedings,169 the Cour de
Cassation ruled that French insolvency proceedings should have
universal effect in all countries where the bankrupt’s assets are
located.170 Further, and more pertinently, it ruled that the French courts
could ensure that creditors abide by this principle by issuing
extraterritorial injunctions.171 On the facts of Banque Worms, the Cour
de Cassation issued an injunction, enforced by daily financial penalties,
to compel Banque Worms to waive its claim before the Spanish courts,
and to reinstate the primacy of French insolvency proceedings.172
If United States courts similarly favor the policy goal of orderly
administration over the need to uphold comity, and share the reasoning
166. For a detailed look at this issue, see Ho, supra note 73.
167. The French Supreme Court. That the French courts did this is slightly surprising, given
that the anti-suit injunction is traditionally a “common law” remedy issued by courts with a
common law (as opposed to civil law) heritage.
168. Cass. 1e civ., 19 Nov. 2002, Bull. Civ. I, No. 275 (Fr.).
169. Council Regulation 1346/2000, 2000 O.J. (L 160) 1.
170. Banque Worms, Bull. Civ. I, No. 275.
171. Id.
172. Id.
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of the French courts, then, under the proposed categorization approach,
it would be unnecessary to replay the policy conflict each time the issue
arises in the cross-border insolvency context. The courts will have a
clear default position to start from, and can concentrate on ascertaining
and developing the specific factors that might compel a different result.
d.
Patent and Trademark Litigation
Conversely, in some categories of cases it will usually be legitimate
to commence foreign proceedings, even if parallel proceedings are on
foot in domestic courts. In such cases, the United States courts should
be slow to issue anti-suit injunctions to enjoin foreign proceedings.
In patent and trademark litigation, parties may legitimately
commence litigation overseas to vindicate patent or trademark rights. As
a general rule, the United States federal courts may not adjudicate
questions of foreign trademark rights, even though the same parties may
properly be before the court in another matter.173
Parties must be allowed to vindicate foreign trademark rights in
foreign courts, if this is the only way they can properly do so. In Sperry
Rand Corp. v. Sunbeam Corp.,174 the court held, in vacating a
preliminary injunction issued by the lower court, that the threat to file
separate actions in other foreign countries involving specific foreign
rights arising under, and enforceable only through, those countries’
laws, did not amount to vexatious or harassing litigation.175
The courts are also reluctant to impede foreign proceedings
involving foreign patent rights. The court in Goodyear Tire & Rubber
Co. v. Rubber Tire Wheel Co.176 refused to issue an anti-suit injunction
to enjoin Cuban patent litigation, even though a prior federal court
decision had declared the United States patent held by the defendants to
be invalid, observing that “[t]he monopoly of a patent does not extent
[sic] beyond the jurisdiction of the government granting it…. Whatever
effect a patent granted by one country has in another depends upon the
status given to it by the laws of the latter.”177 Similarly, in Western
Electric Co. v. Milgo Electronic Corp.,178 the court refused to grant an
injunction to enjoin United Kingdom patent proceedings, on the grounds
173. See, e.g. , Sperry Rand Corp. v. Sunbeam Corp., 285 F.2d 542, 544 (7th Cir. 1960)
(noting the parties’ agreement on this point).
174. 285 F.2d 542.
175. Id. at 545.
176. 164 F. 869 (C.C.S.D. Ohio 1908).
177. Id. at 873.
178. 450 F. Supp. 835 (S.D. Fla. 1978).
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that only the United Kingdom court could decide whether its patents
had been misused. The court observed:
It is settled that patents granted by different countries represent
separate and distinct legal rights which should be controlled by
the country granting the right…. And it is abundantly clear that a
finding that a U.S. patent is invalid will have no impact on the
enforcement of a foreign counterpart patent, much less a
completely different patent.179
The court acknowledged that it could not make a finding that would
impact the United Kingdom patents or litigation proceedings,180 and
refused to enjoin the United Kingdom proceedings because:
[n]o public interest would be served by enjoining a foreign action
involving different patent grants from different sovereigns under
different laws wherein different parties are involved, and
particularly when the defenses raised in the United States Action
can have no impact on the foreign action regardless of how they
are determined.181
These cases demonstrate that, ordinarily, a party could legitimately
commence foreign litigation, when the proceedings involve patent,
trademark, and other rights that can only be adjudicated under foreign
laws by foreign courts. If the courts will generally regard such
proceedings as legitimate, these foreign proceedings should rarely be
enjoined. In fact, the cumulative weight of effective vindication of such
rights and the policy of preserving comity make it difficult to think of
any circumstances under which the courts should issue an anti-suit
injunction to restrain foreign patent and trademark proceedings. The
challenge is to identify other areas where strong policy considerations
favoring foreign litigation will compel a similar approach. Again, the
proposed category-based approach would make it unnecessary to
determine afresh the weight that should be given to comity in such
cases.
e.
Protecting the Jurisdiction of the United States Court
The preservation of jurisdiction and the protection of important
national policies are two broad grounds that may, notwithstanding the
179. Id. at 838.
180. Id. at 839.
181. Id. at 841.
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demands of comity, justify an anti-suit injunction.182 But these grounds,
as expressed, are too sweepingly broad to guide the court in any
meaningful way. To mould these grounds into useful guidelines, the
courts must recognize the need to develop contextual guidelines that
clearly spell out, on a lower level of abstraction, the circumstances in
which anti-suit injunctions should be issued. In this regard, the approach
of Judge Wilkey in Laker Airways, Ltd. v. Sabena, Belgian World
Airlines183 is exemplary. There, Judge Wilkey did not merely repeat the
generalized principle that the court would issue an anti-suit injunction to
protect the jurisdiction of the domestic court, but instead pragmatically
outlined specific circumstances in which the principle would compel the
court to do so. According to Judge Wilkey, the court will generally issue
an anti-suit injunction to protect its own jurisdiction when it is faced
with foreign litigation that does not constitute a bona fide parallel
proceeding. Judge Wilkey opined that a foreign proceeding would not
be a bona fide parallel proceeding when (1) there is a previous judgment
on the merits that one party can plead as res judicata overseas;184 (2) the
overseas actions are commenced only for the purpose of harassment and
attrition;185 and (3) the sole aim of the foreign proceedings is to
terminate, paralyze, or halt the United States proceedings.186 Judge
Wilkey also thought that a court could issue anti-suit injunctions against
foreign proceedings that attempt to carve out exclusive jurisdiction,
instead of proceeding in parallel:
The logical reciprocal of the parallel proceeding rule proves that
there must be circumstances in which an anti-suit injunction is
necessary to conserve the court’s ability to reach a judgment. Just
as the parallel proceeding rule counsels against interference with
a foreign court’s exercise of concurrent jurisdiction, it authorizes
the domestic court to resist the attempts of a foreign court to
interfere with an in personam action before the domestic court.
When the availability of an action in the domestic courts is
necessary to a full and fair adjudication of the plaintiff’s claims,
a court should preserve that forum. Thus, where the foreign
182. See Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 17 (1st
Cir. 2004) (citing Stonington Partners, Inc. v. Lernout & Hauspie Speech Prods., 310 F.3d 118,
127 (3d Cir. 2002)); Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349, 1355 (6th Cir.
1992); China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36 (2d Cir. 1987); Laker
Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 927 (D.C. Cir. 1984).
183. 731 F.2d at 937-38.
184. Id. at 928.
185. Id.
186. Id. at 930.
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proceeding is not following a parallel track but attempts to carve
out exclusive jurisdiction over concurrent actions, an injunction
may be necessary to avoid the possibility of losing validly
invoked jurisdiction. This would be particularly true if the
foreign forum did not offer the remedy sought in the domestic
forum.187
These guidelines formulated by Judge Wilkey identify, with striking
clarity, situations that would warrant an anti-suit relief. This shows that
even in abstract categories, such as “protection of the jurisdiction of the
court,” it is possible for the courts to set out useful and practical
guidelines as long as they are aware of the need to do so. Otherwise,
they may miss opportunities to develop useful guidelines, even if the
“right” case presents itself. For instance, Quaak could have been
analyzed as a case involving a “protective” anti-suit injunction.188 There,
KPMG-B sought an order from the Belgian courts imposing substantial
penalties on parties who took any step to proceed with the United States
discovery order. In affirming the decision to enjoin the Belgian
proceedings, the Quaak judgment concludes, “the district court acted
defensively to protect its own authority from an interdictory strike and
we are confident that, in doing so, the court kept the balance steady and
true.”189 Cases of this sort fall squarely into Judge Wilkey’s conception
that anti-suit injunctions can properly be issued where the sole aim of
the foreign proceedings is to terminate, paralyze or halt the United
States proceedings.190 Although Quaak rightly decided that comity
should not stand in the way of a “protective” anti-suit injunction issued
to defend national policies or the jurisdiction of the court,191 more
187. Id. at 929-30.
188. The anti-suit injunction issued by Justice Langley in Gen. Star Int’l Indemnity Ltd. v.
Stirling Cooke Brown Reinsurance, [2003] Lloyd’s Rep. 719 (Eng. Q.B.D. Comm. Ct.), can
possibly also be analyzed as an instance of an anti-suit injunction issued against foreign
proceedings whose only aim is to terminate, paralyze or halt the domestic proceedings.
189. 361 F.3d at 22.
190. The Quaak court did mention, however, that:
This attempt to chill legitimate discovery by in terrorem tactics can scarcely be viewed as
anything but an effort to “quash the practical power of the United States courts.” Laker
Airways, 731 F.2d at 938; see United States v. Davis, 767 F.2d 1025, 1029 (2d Cir. 1985)
(upholding injunction of foreign proceeding where the “sole purpose” of instituting that
proceeding “was to block compliance with a legitimate trial subpoena”). Thus, the foreign
action is plainly interdictory in nature.
Quaak, 361 F.3d at 20. Nevertheless, without the court recognizing that the case before it fell
within a specific category enunciated by Judge Wilkey in Laker Airways, that is still perhaps not
enough to “join the dots.”
191. There is no reason why the forum court should prefer the interests of foreign jurisdiction,
over its own, when foreign proceedings threaten the forum court’s national policies and
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important is that these cases also present opportunities to develop useful
guidelines. To do this, the courts must distill and categorize cases
according to identifiable situations where anti-suit relief is warranted,
and reduce those situations into the most concrete guidelines possible.
3.
Categories in Which Meaningful Categorization May Be
Difficult
The previous sections demonstrate that courts may successfully
develop case law in specific categories, to clarify the availability of antisuit relief, where strong policy factors influence the decision to grant an
anti-suit injunction. Where strong policy factors favor or disfavor antisuit injunctions, the specific factual circumstances are likely to be less
important, as they are less likely to rise to a level that would compel a
different outcome. Conversely, it is unlikely that the categorization
approach will work as well in cases where such strong policy factors are
not clearly identifiable. In such cases, it is difficult to determine ex ante
whether an anti-suit injunction will be appropriate, and a close
examination of the equitable circumstances of the case becomes allimportant.
The proposed categorization approach can only work if the courts are
alive to the need to identify and consider analogous anti-suit injunction
cases. The courts must consider whether their particular case can be
placed in existing categories, whether existing categories should be
modified, or whether new categories should be created to accommodate
new and emerging policies. Most importantly, the courts must further
articulate, clarify, and develop the specific policies at play. They would
not be able to effect meaningful categorization nor develop the anti-suit
remedy otherwise.
B.
Drawing a Distinction between Consequences of Breaching an
Anti-Suit Injunction: The Contempt Aspect and the
Non-Recognition Aspect
The second proposal attempts to mitigate the impact of anti-suit
injunctions on comity by discarding the contempt consequence of
breaching anti-suit injunctions. When a party disobeys an anti-suit
injunction, the court issuing the injunction will usually regard such
jurisdiction. “Comity would not be warranted, however, where the purpose of the foreign
interference is specifically designed to impede the forum court’s exercise of its proper jurisdiction
and thereby hinder its ability to adjudicate a particular conflict pending before it.” Dow Jones &
Co. v. Harrods, Ltd., 237 F. Supp. 2d 394, 420 (S.D.N.Y. 2002).
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disobedience as contempt of court,192 and will also refuse to recognize
or enforce any foreign judgment obtained in defiance of the order.193
In a sense, these two consequences respectively reflect the domestic
origins and the international nature of the anti-suit injunction. The
contempt consequence derives from the court’s inherent power to
protect its own dignity and authority by punishing the violation of its
orders;194 the non-recognition consequence derives from the public
policy against recognizing or enforcing foreign judgments obtained in
breach of an anti-suit injunction issued by that court195—it being against
public policy to aid a party in contempt of court to realize the fruits of
his contemptuous act by recognizing or enforcing it.196
192. See generally Amchem Prods. v. Windsor, 521 U.S. 591, 605 (1997) (violating the
federal District Court’s anti-suit injunction resulting in civil contempt); Paramedics, 369 F.3d
645; In re Cantu, 961 S.W.2d 482 (Tex. App. 1997) (finding defendant attorney in contempt for
failing to obey an order of the court enjoining defendant from asking for additional relief that
would impede or prevent the collection of a final judgment rendered by a trial court).
193. BELL, supra note 2, at 173 (citing Bushby v. Munday, 56 Eng. Rep. 908, 913 (V.C.
1821)). In Ellerman Lines v. Read, [1928] 2 K.B. 144, 155 (Eng. C.A.), Lord Justice Atkin in the
English Court of Appeal observed:
If the English court finds that a person subject to its jurisdiction has committed a breach
of covenant, or that he has acted in breach of some fiduciary duty, or in any other
respect which is recognised by a court of equity has violated the principles of equity and
conscience, so that it is inequitable that he should enforce that remedy, then this court
will restrain him, not by issuing an edict to the foreign court, but by saying that he is in
conscience bound not to enforce that judgment.
194. See Young v. United States, 481 U.S. 787 (1987) (noting that courts of the United States,
when called into existence and vested with jurisdiction over any subject, at once possess the
inherent authority to initiate contempt proceedings for disobedience of their orders, and such
power is a necessary and integral part in insuring that the judiciary has a means to vindicate its
own authority without complete dependence on other branches and is absolutely essential to the
performance of the duties imposed on courts by law); In re Perry, 641 So. 2d 366, 368 (Fla. 1994)
(“[o]ne of the most important and essential powers of a court is the authority to protect itself
against those who disregard its dignity and authority or disobey its orders. This authority is
appropriately administered through a court’s power to punish by contempt.”); see also Shillitani
v. United States, 384 U.S. 364 (1966); United States v. Shipp, 203 U.S. 563 (1906); Bessette v.
W. B. Conkey Co., 194 U.S. 324 (1904); United States v. Voss, 82 F.3d 1521 (10th Cir. 1996);
People by Abrams v. Terry, 45 F.3d 17 (2d Cir. 1995). According to 18 U.S.C. § 401(1), ”[a]
finding of contempt is appropriate when: (1) the court order’s provisions are clear and
unambiguous; (2) the moving party establishes noncompliance by clear and convincing evidence;
and (3) the defendant has not exercised reasonable diligence in attempting to comply.” United
States v. Connecticut, 931 F. Supp. 974 (D. Conn. 1996).
195. A United States court may refuse to enforce a foreign judgment where to do so will
contravene public policy. Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435,
443 (3d Cir. 1971); see also Laker Airways, 731 F.2d at 937-938 (“Thus, from the earliest times,
authorities have recognized that the obligation of comity expires when the strong public policies
of the forum are vitiated by the foreign act. Case law on the subject is extensive and recognizes
the current validity of this exception to comity”).
196. See DICEY AND MORRIS, supra note 67 (“It will be contrary to public policy to recognise
or enforce a judgment which has been obtained in disobedience of an injunction not to proceed
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As discussed, breaching an international anti-suit injunction need not
attract the same consequences as breaching a purely domestic
injunction. In particular, the courts should examine how the contempt
consequence—presumably derived from the consequences of breaching
a domestic injunction order—should apply in the international context.
If the courts are particularly concerned with the offense that anti-suit
injunctions cause foreign courts, a way forward may be to sever the
contempt consequence from the international anti-suit injunction, whilst
preserving some force to the order by retaining and developing the nonrecognition consequence.197 Drawing a dichotomy between the two
consequences and ridding the contempt consequence from international
anti-suit injunctions will dramatically lessen the impact of such
injunctions on comity. Foreign courts that find their proceedings
enjoined by an anti-suit injunction are understandably annoyed—but not
because the order is binding on (or indeed, directed at) those courts. One
may speculate that foreign courts regard anti-suit injunctions as
offensive because they constitute an unwarranted intrusion into the
processes over which the foreign courts should be sole arbiters.198
the action in a foreign court.”) It is strongly arguable that the United States courts will not
recognize or enforce foreign judgments obtained in breach of an anti-suit injunction enjoining the
originating proceedings. They may legitimately do this on grounds of public policy, in particular,
on the ground that to do so would tend to injure “the public confidence in the purity of the
administration of the law.” Somportex, 453 F.2d at 443 (citing Goodyear v. Brown, 26 A. 665,
666 (Pa. 1893); see also WSG Nimbus Pte Ltd. v. Board of Control for Cricket in Sri Lanka,
[2002] 3 SLR 603 (Sing. H.C.), where the Singapore High Court opined that it was “manifestly
against public policy” to give recognition to a foreign judgment obtained in breach of an anti-suit
injunction given by the Singapore court to restrain the breach of an arbitration clause. Id. at para.
65.
197. In this regard, Judge Wilkey noted that enjoining participation of a foreign lawsuit to
preempt a potential judgment is a “much greater interference with an independent country’s
judicial process” than refusing to enforce judgments on public policy grounds. Laker Airways,
731 F.2d at 931.
198. According to the Gau Shan court:
In this regard, antisuit injunctions are even more destructive of international comity
than, for example, refusals to enforce foreign judgments. At least in the latter context
foreign courts are given the opportunity to exercise their jurisdiction. Antisuit
injunctions, on the other hand, deny foreign courts the right to exercise their proper
jurisdiction. Such action conveys the message, intended or not, that the issuing court has
so little confidence in the foreign court’s ability to adjudicate a given dispute fairly and
efficiently that it is unwilling even to allow the possibility.
956 F.2d at 1355. Additionally, the German court in Re the Enforcement of an English Anti-Suit
Injunction, [1997] I.L.Pr. 320, made strong comments to the effect that: (i) serving the anti-suit
injunction on a German national infringed the sovereignty of Germany; (ii) anti-suit injunctions
infringe the jurisdiction of the German court, which was the only court that could decide the
issues of jurisdiction in that case; (iii) the fact that the order was addressed to the litigant as
opposed to the German court was irrelevant because the sovereignty of Germany was still
infringed; and (iv) the injunction would deny the German litigant a right of free access to the
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Justice Langley in General Star International Indemnity Ltd. v. Stirling
Cooke Brown Reinsurance199 was clearly not amused (and quickly
issued an anti-suit injunction in response) when he was on the receiving
end of a New York anti-suit injunction. His underlying point was that
questions of jurisdiction were plainly for the forum court to decide:
The fact now is that this court is seized of the issue and I, like
Thomas J, and I would hope the court in New York, would think
it plainly right that in a case involving proceedings in this
country between parties each of whom is English and directly
subject to this court’s jurisdiction it is, absent some quite
exceptional circumstance, for this court to address questions of
forum…. Moreover, I can see no justification for the course
adopted by SCB in seeking to set on foot proceedings in New
York after the issue of these proceedings rather than seeking to
apply to this court to decline jurisdiction.200
Thus, comity would require that the United States courts refrain from
issuing anti-suit injunctions when these injunctions would interfere with
decisions within the proper domain of the foreign court. Comity may, in
such cases, prevent the courts from using the current conception of the
injunction, with its contempt consequence, to enjoin almost all foreign
parallel litigation, since the purpose of the anti-suit injunction—the
termination of the foreign proceedings—is almost always an issue that
the foreign court thinks should appropriately be decided only by itself.
These issues lie within the legitimate prerogative of the foreign court,
and the U.S. courts should not use anti-suit injunctions to preempt or
decide for the foreign court what it should do.
The foreign court has other legitimate concerns as well. Even if the
anti-suit injunction does not purport to decide an issue within the
jurisdiction of that court, it nonetheless interferes indirectly with the
court’s processes. When a United States court issues an anti-suit
injunction to enjoin foreign proceedings, the foreign court is, of course,
free to disregard the injunction, but the party subject to the anti-suit
injunction is not as lucky. If he disregards the anti-suit injunction, he
does so at the risk of being held in contempt by the United States courts.
The offense felt by the foreign court is exacerbated by the tendency of
litigants to commence parallel proceedings in the courts of their own
country. Foreign courts are understandably irritated when their nationals
German courts.
199. [2003] Lloyd’s Rep. 719.
200. Id.at para. 9.
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can only plead their case before their own national courts by running the
risk of being in contempt of a foreign court.
But there is a flip side to all this: the foreign court cannot legitimately
complain if the United States courts do not encroach on matters that the
foreign court should appropriately decide, and if litigants are not
coerced by it—such that there is no indirect interference with the
foreign court’s processes. This may be so if the sole consequence of
breaching a United States anti-suit injunction is that any judgment
obtained in breach of it will not be recognized or enforced in the United
States. The foreign court cannot complain. All the United States court
decides is that it will not recognize or enforce any foreign judgment
obtained in disregard of its anti-suit order and may be regarded as akin
to a declaratory judgment on this issue. The recognition and
enforcement of foreign judgments within the territorial confines of the
United States is an issue within the sole purview of the United States
courts; no foreign court can expect to have any say in this matter. While
it is true that in the course of issuing an anti-suit injunction, the United
States court may necessarily have to decide certain issues that overlap
with those before the foreign court, the United States court does not
decide those issues on the merits but solely within the confines of
recognition and enforcement of any potential judgment. The United
States courts do this all the time when they recognize or refuse
recognition of a foreign judgment, and conducting the same exercise
within the anti-suit injunction inquiry cannot make it more
objectionable. Neither would the foreign court’s processes be interfered
with since foreign litigants are not coerced by such injunctions. These
litigants merely face the same risk of non-recognition or nonenforcement that they have to face in “ordinary” cases that do not
involve anti-suit injunctions.201 Indeed, it is difficult to see how the
United States courts can be faulted for issuing such injunctions, since
they do not infringe upon decisions that the foreign court could make,
nor interfere with the processes of foreign courts by threatening
contempt proceedings against litigants in those courts.
201. Although the non-recognition consequence may be a factor disinclining the enjoined
party from continuing the foreign proceedings, there always exists the possibility that he may
have to face these same arguments when he attempts to enforce the foreign judgment before the
United States courts.
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XI. COMPENSATORY CIVIL CONTEMPT AND DAMAGES FOR BREACH
OF AN ANTI-SUIT INJUNCTION ORDER
In the most detailed judicial consideration of this precise issue to
date, the Paramedics court considered the issue of contempt for
breaching anti-suit injunction orders, and explained that a party may be
in civil contempt if (1) the order was clear and unambiguous, (2) proof
of non-compliance is clear and convincing, and (3) the party did not
diligently make any reasonable attempt to comply.202 Parties who
disagree with the order are still expected to comply with it until it is
modified or reversed, regardless of whether they have good grounds for
objection, out of “respect for the judicial process.”203 The court also
explained that there were two purposes of civil contempt
sanctions—compliance and compensation. The difference between
coercive civil contempt and compensatory civil contempt lies in the
purpose of the remedy. In coercive civil contempt, the court uses
sanctions such as fines or incarceration to force the offending party to
comply with the court’s order. “With compensatory contempt, the court
attempts to compensate the plaintiff for the damage that the offending
party has caused,”204 and the court has more discretion to design a
remedy that will ensure compliance. But when the fine is compensatory,
and is to be paid to the other party, rather than to the court, the sanction
must correspond to some degree with the amount of damages suffered
by the other party. In such a case, the other party is expected to
demonstrate some loss to justify compensation.205
The allusion to a compensatory fine payable to the other party, upon
the breach of an anti-suit injunction and assessed by the damages
suffered by that party, is interesting. That the courts may use the civil
contempt206 consequence to make a compensatory award to the other
party, to compensate him for damages suffered, hints at the possibility
of developing a damages remedy as an alternative to the anti-suit
injunction.207
202. Paramedics, 369 F.3d at 655.
203. Id. at 656.
204. Coleman v. Espy, 986 F.2d 1184, 1190 (8th Cir. 1993).
205. Paramedics, 369 F.3d at 657-58.
206. Bingman v. Ward, 100 F.3d 653, 655 (9th Cir. 1996) (“Civil contempt is a refusal to do
an act the court has ordered for the benefit of a party; the sentence is remedial. Criminal contempt
is a completed act of disobedience; the sentence is punitive to vindicate the authority of the
court.”).
207. The position for a contempt order in general is exactly the same:
A “civil contempt” order is compensatory and coercive. With coercive-contempt
penalties, the court issues sanctions such as fines or incarceration to force the offending
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Damages: An Alternative Remedy to Anti-Suit Injunctions
Damages may be an equally effective remedy as an anti-suit
injunction, and the two should be used in tandem to control international
litigation.208 The compensatory aspect of civil contempt,209 triggered by
the breach of an anti-suit order, suggests that the courts should consider
the alternative remedy of damages, regardless of whether they would
consider issuing an anti-suit injunction. The fact that an anti-suit
injunction is inappropriate should not alone end the inquiry. Instead, the
court must go on to consider whether to award damages in lieu of, or in
addition to, the anti-suit injunction. The remedial power of the court to
award such damages and its power to award damages for breach of
contract suggest that it can disincentivize parties from continuing
proceedings in foreign courts by fashioning and using a damages
remedy.
1.
Power to Award Damages for Breach of Contract
Cases in which anti-suit injunctions are issued to specifically enforce
a contractual bargain are the most obvious starting points to develop the
alternative damages remedy, because of the contractual peg on which to
hang a damages action. Cases where anti-suit injunctions are issued to
party to comply with the court’s order, whereas with compensatory contempt, the court
attempts to compensate the plaintiff for damage that the offending party has caused by
its contempt. Civil contempt proceedings look only to the future. Thus, rather than to
punish the offending party for a failure to comply with a court order, the purpose of civil
contempt sanctions is to compensate the complainant for losses and expenses it incurred
because of a contemptuous act and to coerce the contemnor into complying with the
court order. The sentence is remedial, and because the purpose of civil contempt is
remedial, it matters not with what intent the defendant did the prohibited act. In
determining whether to grant an application to punish for civil contempt, the court need
not find willful or intentional conduct by the contemnor, nor that the contemnor
benefited from the act of disobedience. The mere act of disobedience, regardless of its
motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats,
impairs, impedes, or prejudices the rights of a party. Caution: In distinguishing criminal
and civil contempt sanctions, the court inquires whether the sanction’s purpose was to
coerce compliance and whether the contemnor was given the opportunity to cure his or
her contempt and thereby end the sanction, rather than rely upon the stated purpose of
the contempt sanction or on the label given to the proceeding by the court below.
However, a civil contempt order that starts out as coercive can become punitive and
therefore “criminal contempt.”
17 AM. JUR. 2d Contempt § 4 (2004).
208. For an extended discussion of the damages remedy and how it may be used to control
international litigation, see Tan, supra note 12.
209. It should also be noted that the Paramedics court stated that a fine, if one is paid to the
party rather than the court, should correspond to some degree with the amount of damages.
Paramedics, 369 F.3d at 658.
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specifically enforce forum selection or arbitration clauses immediately
suggest themselves. This Article has argued that the court should
consider issuing an anti-suit injunction, almost as a matter of course, to
restrain a party from instituting legal proceedings in breach of an
agreement contained in a forum selection or arbitration clause. The
argument here is that when a party litigates in a foreign court in breach
of an agreement, the innocent party should not only be able to seek an
anti-suit injunction to restrain such breaches, but should also be able to
seek damages for what is nothing more than a straightforward breach of
contract.210
2.
Power of the Court to Award Damages in Addition to, or in
Lieu of, an Injunction
Once the moving party makes out his equitable entitlement to antisuit relief, the power of a court of equity to grant damages in addition
to, or in lieu of, an injunction suggests that the court should also
consider whether the equitable entitlement may be vindicated by an
award of damages. In Doyle v. Allstate Ins. Co,211 the court observed
that it may grant damages once the plaintiff establishes his right to
equitable relief, even if the specific equitable remedy is “impossible or
impracticable”:
The award of mere compensatory damages, which are almost
always unliquidated, is a remedy peculiarly belonging to the
province of the law courts, requiring the aid of a jury in their
assessment, and inappropriate to the judicial position and
functions of a chancellor. If, however, the plaintiff succeeds in
proving that he is entitled to equitable relief, equity may grant
damages in addition to or as an incident of some other special
equitable relief or, where the granting of equitable relief appears
to be impossible or impracticable, equity may award damages in
lieu of the desired equitable remedy. It is a familiar principle that
a court of equity, having obtained jurisdiction of the parties and
210. The importance of a remedy to enforce a contractual obligation was emphasized by the
United States Supreme Court in Von Hoffman v. Quincy, 71 U.S. 535, 552 (1867):
Nothing can be more material to the obligation than the means of enforcement. Without
the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its
obligation to fall within the class of those moral and social duties which depend for their
fulfillment wholly upon the will of the individual. The ideas of validity and remedy are
inseparable, and both are parts of the obligation, which is guaranteed by the Constitution
against invasion. The obligation of a contract “is the law which binds the parties to
perform their agreement.”
211. 1 N.Y.2d 439 (N.Y. 1956).
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the subject-matter of the action, will adapt its relief to the
exigencies of the case. It may order a sum of money to be paid to
the plaintiff and give him a personal judgment therefor when that
form of relief becomes necessary in order to prevent a failure of
justice and when it is for any reason impracticable to grant the
specific relief demanded.212
Therefore, where the case for equitable relief is met, and the court
could otherwise have issued an anti-suit injunction, the equitable power
of the court to award damages in addition to or in lieu of the injunction
will permit the court to consider a damages remedy.
B.
The Argument for Damages
The argument for damages in this context stems from three
propositions. First, the court can award contractual damages for breach
of contract when a party commences foreign proceedings in breach of a
forum selection or arbitration clause. Second, the power to award
damages in lieu of an injunction suggests that the same equitable
entitlement that grounds injunctive relief would also found an action for
damages, even if it is “impossible or impracticable” to issue the
injunction remedy. Third, the suggestion in Paramedics that
compensatory civil contempt damages are available to remedy breaches
of anti-suit injunction orders further reinforces the damages argument. If
the courts will grant compensatory damages when anti-suit injunction
orders are breached, they have no reason to interpose the formalistic
step of rendering an anti-suit order before awarding compensatory
damages where an anti-suit injunction order would be futile. If the antisuit injunction order would be ineffectual, they should consider
awarding damages straightaway. Interposing the anti-suit injunction
order would be unnecessarily formalistic in cases where the anti-suit
order will clearly be disregarded or inevitably breached, or where
proceedings brought in breach of the forum selection clause are already
at an advanced stage or would be inefficient or difficult to restrain with
an anti-suit injunction. There may be other policy reasons why the court
would refuse to restrain foreign proceedings with an anti-suit injunction,
but would still want to consider damages to do private justice between
the parties who have agreed that neither should be permitted to litigate
there. Anyhow, if the anti-suit order, even if made, would clearly not
stop the foreign proceedings, the courts should be pragmatic and grant
212. Id. at 442-43; see also Cox v. City of New York, 265 N.Y. 411 (N.Y. 1934) (emphasis
added) (citations omitted).
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compensatory relief to the innocent party as if the anti-suit order was
granted and breached. If the anti-suit remedy is inefficacious, the court
should still consider providing relief by awarding damages. There is no
need to be unnecessarily formalistic about this.
That the courts should have the power to award compensatory
damages is further buttressed by the traditional premise for the
availability of injunctions—that damages are inadequate to address
certain breaches—since the traditional premise presupposes that
damages would have, but for their supposed inadequacy, been the
proper response in such cases.
C.
The Anglo-American Authorities
Despite some authority in the United States and England suggesting
that the courts would permit such a cause of action, the damages remedy
involves complex issues. The United States courts have not provided
any reasoned analysis on the subject of whether a defendant can obtain
an award of damages when sued in a foreign court by the plaintiff in
breach of the latter’s promise not to do so. This issue has also received
scant attention in academic discourse.213 Despite this, some authority
suggests that the courts may be prepared to recognize such a cause of
action. The court in Laboratory Corporation of America Inc. v. Upstate
Testing Laboratory, Inc.214 opined, without any reasoned analysis as to
213. The only academic comment on this issue in the United States seems to be Nicholas S.
Shantar, Forum Selection Clauses: Damages in Lieu of Dismissal?, 82 B.U. L. REV. 1063 (2002).
In that piece, Shantar suggests that in the context of consumer contracts, the court might consider
awarding damages in lieu of dismissing a case. Presumably, this approach enables consumers to
sue in a convenient forum where they would otherwise have to sue in the forum that they
ostensibly agreed to. That piece does not, however, speculate as to the implications of such
damages awards. As this Article illustrates, awarding full compensatory damages may practically
render the consumer’s cause of action in the other forum nugatory or significantly reduced.
214. 967 F. Supp. 295, 299 (N.D. Ill. 1997). In support of this assertion, the judge cited two
cases: Omron Healthcare, Inc. v. Maclaren Exports Ltd., 28 F.3d 600, 604 (7th Cir. 1994), and
Northwestern National Insurance Co. v. Donovan, 916 F.2d 372 (7th Cir. 1990). The judge
appeared to rely on Omron Healthcare as express authority for the proposition that “damages
could have been sought for a breach of forum selection clause.” Id. The problem with Omron
Healthcare, however, is that it constitutes the most slender authority for that proposition. The
court in Omron Healthcare, in an opinion by Judge Easterbrook, stated in the last line of its
decision, almost as a throwaway comment, that “Omron signed a contract promising to litigate in
the High Court of Justice, or not at all. It broke that promise. Instead of seeking damages for
breach of contract, Maclaren is content with specific performance. The district court properly
dismissed the suit.” Omron Healthcare, 28 F.3d at 604.
From the judgment, it is clear that Maclaren did not seek damages in that suit and that the
damages point was neither seriously argued nor considered by the court. Accordingly, it is
difficult to know what we should make of Judge Easterbrook’s comment, which really only states
that it was open to Maclaren to ask for specific performance instead of pursuing a damages claim,
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why this should be the case, that damages could be claimed for breach
of a forum selection clause. The court in Allendale Mutual Insurance
Co. v. Excess Insurance Co. Ltd.215 relied on Laboratory Corporation of
America for that precise proposition, and held that a party would be
liable for the “still uncompensated expenses” that were incurred by the
other party in defending an action brought in breach of agreement.216
Similarly, in Indosuez Intern. Finance, B.V. v. National Reserve Bank,217
the court affirmatively stated that damages may be obtained for breach
of a forum selection clause, and that such an award does not contravene
the American rule that deems attorneys’ fees a mere incident of
litigation.218 In Taylor v. Bevinco Bar Systems,219 the court held that it
would not be inequitable or unreasonable to award attorney’s fees,
pursuant to a contractual provision, where these were incurred because
of the breach of a forum selection clause.220 Neither did the court in
Caribbean Wholesales & Service Corp. v. U.S. JVC Corp.221 seem to
doubt that an action for recovery of damages under contract would have
been available, had the forum clause in that case been valid.222
On the other hand, other cases deny the existence of such a cause of
action. The courts in Wells v. Entre Computer Centers, Inc.223 and RGC
had it chosen to do so. At best, Omron Healthcare provides a mere inference that it is possible to
bring an action for breach of a forum selection clause—but this was not what the court in that
case in fact decided.
The other case that Judge Bucklo cites provides even less support for a damages action. In
Northwestern National Insurance Co. v. Donovan, the court merely refused a motion for change
of venue on grounds of inconvenience. The court held that:
[O]ne who has agreed to be sued in the forum selected by the plaintiff has thereby agreed not
to seek to retract his agreement by asking for a change of venue on the basis of costs or
inconvenience to himself; such an effort would violate the duty of good faith that modern law
reads into contractual undertakings.
Donovan, 916 F.2d at 378. Nowhere in that case was the issue of damages even raised.
215. 992 F. Supp. 278, 286 (S.D.N.Y. 1998).
216. Even though the court in Allendale used Laboratory Corp. of America v. Upstate Testing
Lab., Inc., 967 F. Supp. 295 (N.D. Ill. 1997), as authority for the proposition that the cause of
action exists under New York law, when the court expressly decided the issue under the
governing law of the contract, which in that case was Illinois law.
217. 758 N.Y.S.2d 308, 311 (N.Y. App. Div. 2003).
218. The court also cited Laboratory Corporation, 967 F. Supp. at 299, and Allendale
Mutual., 992 F. Supp. at 286, as support for this proposition.
219. CV 95-764, 1997 U.S. Dist. LEXIS 22098 (D. Ariz. 1997).
220. One would argue that the mere fact that the parties provided for the damages remedy in
event of a breach should not stand in the way of a wider right to damages. Where the parties are
silent as to the remedy for breach of contract, provided the clause breached is perfectly valid and
enforceable, there is no reason why the court should not consider awarding “ordinary” damages to
remedy the breach.
221. 963 F. Supp. 1342 (S.D.N.Y. 1997).
222. Id. at 1360.
223. 915 F.2d 1566, n.3 (4th Cir. 1990) (“Entre knows of no case, however, nor do we, in
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International Investors, LDC v. ARI Network Services224 did not think
that a party could successfully maintain an action for damages for
breach of forum selection clauses. Unfortunately, they refused to
consider the damages argument solely because there was no authority
supporting such a cause of action, without considering whether it should
be permitted as a matter of policy or principle. In fact, whether the
cause of action was permitted or not, the United States courts have
never considered the potential scope and implications of awarding
damages for breaches of forum selection clauses.
The English courts have given the matter significantly more scrutiny.
Recent judicial opinions suggest that English courts are willing to
permit a damages action. In Union Discount v. Zoller,225 the first
reported English case in which the issue was argued, the English Court
of Appeal held that a defendant could recover damages where:
(1) the claimant seeks to recover costs incurred by him as a
defendant in foreign proceedings;
(2) the defendant brought those foreign proceedings in breach of
an express term;
(3) the rules of the foreign forum only permitted recovery of
costs in exceptional circumstances; and,
(4) the foreign court did not adjudicate on the issue of costs.
Although the English Court of Appeal purported to restrict its
decision on its facts, the House of Lords in Donohue v. Armco Inc226
hinted at a more general right to damages for such breaches.227 More
recently, in A/S D/S Svenborg D/S af 1912 A/S v. Akar,228 the court
interpreted Union Discount as laying to rest any doubts over the issue of
recoverability, as damages, of a party’s reasonable expenses of litigation
which a court has awarded damages because a plaintiff brought suit in a forum other than the one
to which it had contractually agreed, and we find the cross-appeal to be without merit.”).
224. Civ. 03-0003-SLR, WL 189784 at *5 (D. Del. Jan 22, 2004) (“Plaintiff has cited no
authority for the proposition that under Wisconsin law it is also entitled to damages.
Consequently, as plaintiff can not establish that under Wisconsin law it is entitled to any other
remedy, the court will dismiss plaintiff’s breach of contract claim as moot.”).
225. [2002] 1 W.L.R. 1517 (Eng. C.A.).
226. [2002] 1 Lloyd’s Rep. 425, 437. For a comment on Union Discount v. Zoller and
Donohue v. Armco and a discussion of the issue of damages where forum selection clauses are
breached in the English context, see Nik Yeo & Daniel Tan, Damages for Breach of Exclusive
Jurisdiction Clauses, Ch. 15, C OMMERCIAL L AW AND C OMMERCIAL PRACTICE (Sarah
Worthington ed., 2003).
227. The persuasiveness of that dicta may be tainted by the fact that it arose out of concession
by counsel on that very point.
228. [2003] EWHC 797 (Eng. Q.B.D. Comm. Ct.).
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in a jurisdiction selected by the other party in breach of a jurisdiction
clause.229
The present English position, derived from these cases, is that courts
will allow a damages action to recover costs incurred in defending
foreign proceedings brought in breach of contract. Additionally, the
English courts will order the plaintiff to indemnify the defendant against
any future costs that the defendant incurs in doing the same. The
English courts will do this only where such an order does not contradict
the judgment of the foreign court, unless the conduct of the plaintiff
justifies a departure from this.230
Additional support for the damages remedy exists in the form of
older United States cases, which have allowed damages for breaches of
arbitration clauses.231 The Supreme Court in Red Cross Line v. Atlantic
Fruit Co.232 held that prior to the enactment of the Arbitration Law of
New York, “an agreement to arbitrate was legal in New York and
damages were recoverable for a breach thereof.”233 The Court of Civil
Appeals of Texas held in Payton v. The Hurst Eye, Ear, Nose & Throat
Hospital234 that under the common law and the law of Texas at the time,
a party “could not compel an arbitration…and is relegated to a suit for
damages for any breach of the arbitration clauses.”235 This lends further
support for the proposition that damages could be recovered if private
dispute resolution agreements precluding recourse to certain courts are
breached.
D.
Damages: A Potentially Far-Reaching Remedy
The cases above demonstrate that, at the very least, the English courts
and some United States courts are willing to consider damages for what
may generally be described as costs and expenses incurred by the nonbreaching party. But the law of remedies tells us that damages need not
be restricted in this manner. The courts may award full compensatory
229. For a comment on the trilogy of cases, see generally Daniel Tan & Nik Yeo, Breaking
Promises to Litigate in a Particular Forum: Are Damages an Appropriate Remedy? LLOYD’S
MAR. & COM. L.Q 525 (2003).
230. Id.
231. In addition to the cases that follow in the text, courts have stated that arbitration clauses
are to be treated like any other contractual provision. Son Shipping Co. v. De Fosse & Tanghe,
199 F.2d 687, 689 (2d Cir. 1952); Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 126
F.2d 978 (2d Cir. 1942) (quoting 9 U.S.C. § 2). Presumably, the courts in these cases would
similarly award damages if these contractual provisions were breached.
232. 264 U.S. 109 (1924).
233. Id. at 118 (citing Kossick v. United Fruit, 365 U.S. 731, 740 (1961)).
234. 318 S.W.2d 726 (Tex. Civ. App. 1958).
235. Id. at 731.
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damages that completely indemnify the plaintiff. In the international
context, such an award is a potentially far reaching remedy, and may
constitute an even greater infringement of comity than anti-suit
injunctions. If damages are assessed so as to fully compensate the
plaintiff for his loss, this may give the plaintiff a damages award
equivalent to the entire judgment or award obtained by the defendant in
proceedings commenced in breach of a forum selection or arbitration
agreement. The practical effect of such awards is to unwind the foreign
judgment or an arbitration award, and would no doubt cause great
offense to foreign courts whose judgments are, in this way, rendered
nugatory.
In sum, the power of the court to award damages for breach of forum
selection and arbitration clauses flows from its ordinary power to award
damages for breach of contract, and its equitable power to award
damages in addition to, or in lieu of, an injunction. In addition, as
Paramedics suggests, the court may also consider monetary relief in the
form of compensatory damages through the court’s power to award
damages for civil contempt. Precisely how these forms of compensatory
relief interact with the anti-suit injunction remedy—whether the court
should award the full compensatory measure of damages, or only
attorney’s fees, costs and expenses; and whether damages should be
permitted at all for breaches of forum selection or arbitration
clauses—are questions that need to be carefully considered.
An award of damages in this context, properly developed, is
potentially an effective tool to control international litigation. Equally,
the damages remedy could, if not rationally limited, have far-reaching
and damaging consequences. Complex issues underlie these questions
and will be considered in greater detail elsewhere.236
XII. CONCLUSION
This Article attempts to highlight the difficulties involved in
formulating and adopting an approach to anti-suit injunctions that
employs comity as a substantive device. It illustrates that comity is too
uncertain a concept to perform the sophisticated task of striking the
balance between the need, on one hand, to remedy inequitable conduct
and uphold policies and the jurisdiction of the forum, and on the other,
the need for judicial self-restraint. The Article also demonstrates how an
approach that utilizes comity in this way retards, rather than progresses,
236. See Tan, supra note 12.
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the development of anti-suit jurisprudence. Three suggestions have been
proposed. First, that the courts only consider comity in the latter of a
two-stage inquiry, after they have considered the equitable
circumstances of the case. Second, to develop specific categories in
which an anti-suit injunction would ordinarily issue (or not), as well as
an awareness that useful guidelines can be drawn in specific types of
cases where strong policies predominate. Third, that the courts consider
abolishing the contempt consequence to alleviate concerns of comity,
while developing the non-recognition consequence to retain some teeth
to the remedy.
There is still much to do to rationalize the anti-suit injunction
remedy. But the courts will not find a satisfactory solution by adopting
an inward-looking approach that does not address broader policy
questions—the central one being the proper role of the anti-suit
injunction remedy in controlling modern-day international litigation.
The courts must also consider how the “international” and “anti-suit”
aspects of the injunction might oblige them to develop a different set of
rules from those that govern the domestic injunction. And they must
consider how emerging, and potentially complementary, remedies such
as awards of compensatory damages can supplement the anti-suit
remedy and be wielded in tandem to control international litigation. It is
the answers to these questions, and not the content of comity—if that
can ever be ascertained—that will empower the courts to rationalize the
remedy of the anti-suit injunction.