Anti-Suit Injunctions In International Arbitration

5
Table of Contents
ABSTRACT........................................................................9
INTRODUCTION .............................................................. 11
1 FORMS OF THE COURTS INVOLVEMENT IN INTERNATIONAL
ARBITRATION ................................................................. 15
1.1 Courts involvement ..............................................................15
1.2 Pre-arbitration .....................................................................20
1.2.1 Enforcing the arbitration agreement ..................................20
1.2.2 Establishment of the Tribunal ...........................................25
1.2.3 Challenges to jurisdiction .................................................26
1.2.4 Interim measures ...........................................................27
1.3 Powers while arbitration proceedings are pending .....................31
1.3.1 Extension of time............................................................32
1.3.2 Determination of question of law.......................................33
1.3.3 Interim measures ...........................................................34
1.3.3.1 Preservation of evidence ............................................35
1.3.3.2 The attendance of witnesses .......................................36
1.3.3.3 Documentary disclosure .............................................37
1.3.3.4 Anti-suit injunctions...................................................39
1.4 Powers after proceedings.......................................................39
2 ANTI-SUIT INJUNCTIONS ............................................. 43

6
2.1 Definition and terminology.....................................................43
2.2 History and development of principles .....................................48
2.3 Anti-suit Injunctions in Common Law and Civil Law: a Comparative
Prospective.................................................................................52
3 ANTI-SUIT INJUNCTIONS ISSUED BY STATE COURTS ...... 61
3.1 Background .........................................................................61
3.2 Legal Basis ..........................................................................62
3.2.1 International Context ......................................................62
3.2.2 United Kingdom..............................................................67
3.2.3 United States .................................................................69
3.2.4 Civil Law Countries..........................................................70
3.3 Prerequisites........................................................................71
3.3.1 United Kingdom..............................................................71
3.3.2 United States .................................................................76
3.4 Enforcement........................................................................88
4 CONFORMITY OF ANTI-SUIT INJUNCTIONS ISSUED BY
STATE COURTS ............................................................... 93
4.1 Compliance with general international principles and the New York
Convention .................................................................................94
4.1.1 A proposal to amend the New York Convention: the value of
the seat of the arbitration ........................................................ 106
4.2 Compliance with Council Regulation 44/2011 and European law in
general .................................................................................... 110

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4.2.1 Exclusion of Arbitration and Case Law Preceding the West
Tankers case.......................................................................... 110
4.2.2 The West Tankers case .................................................. 120
4.2.2.1 Facts of West Tankers.............................................. 120
4.2.2.2 The House of Lords’ comments.................................. 121
4.2.2.3 Opinion of the Advocate General ............................... 123
4.2.2.4 The West Tankers judgment ..................................... 127
4.2.2.5 Criticism of the Judgment......................................... 129
4.2.3 Anti-suit Injunctions’ compliance with European law after the
West Tankers judgment........................................................... 134
4.2.3.1 The Green Paper ..................................................... 136
4.2.3.2 The Commission’s Proposal....................................... 138
4.2.3.3 Regulation Brussels I bis .......................................... 141
4.2.3.4 The Gazprom case................................................... 145
CONCLUSION................................................................ 149
BIBLIOGRAPHY ............................................................. 155
JOURNAL ARTICLES ....................................................... 161
TABLE OF CASES........................................................... 167
WEBSITES.................................................................... 174

9
ABSTRACT
This thesis aims at investigating the use of anti-suit injunctions within the
international arbitration context. Anti-suit injunctions represent a form of
courts involvement in the arbitration proceedings. This kind of injunctions
originated from common law systems, and are not yet accepted by civil
law countries, where they are considered in contrast with the principle of
mutual trust among courts. Given the lack of any international provision
harmonising the use of anti-suit injunctions worldwide, their compliance
with customary international law and with the 1958 New York Convention
must be verified. Within the European context, their compliance with the
Regulation (EC) 44/2001 (now Regulation (UE) 1215/2012) must be
ascertained, especially after the ECJ’s West Tankers judgment. The
present work draws on a specific literature review, legal theories and a
collection of case-law in a comparative perspective between civil law and
common law systems, in order to address and unfold the problematic use
of anti-suit injunctions in the field of international arbitration. Provided
that a resolution of this controversial matter should come from the
international community, and that anti-suit injunctions should never be
issued unless in very specific cases, the findings of the research allow to
conclude that anti-suit injunctions should be granted by the court of the
seat of the arbitration only. Since no univocal indication has come from
the international community yet, the most appropriate way to handle anti-
suit injunctions is still to assess their appropriateness case by case.

11
INTRODUCTION
The purpose of this thesis is to analyse the anti-suit injunctions
phenomenon with regard to the international arbitration context.
Anti-suit injunctions are means, having their origin in the common law
systems, whereby a court may enjoin a party from bringing a claim before
another court or from continuing a proceedings already started.1
When a
proceedings before a national court starts despite the existence of an
arbitration agreement, the first step the other party should require is the
stay of the proceedings.2
However, staying the litigation proceedings is
not always sufficient in order to enforce the violated arbitration
agreement. Thus, some countries provide additional tools to ensure the
respect and the enforcement of arbitration agreements. These measures
are traditionally provided by common law countries and subjected to
different standards depending on each jurisdiction.3
The increasing recourse to these measures by common law countries and
by developing countries has caught the attention of many commentators.
However, the anti-suit injunctions phenomenon is still too episodic and it
did not rise to rules that can guide the international community in the
management of anti-suit injunctions orders issued within the ambit of
international arbitration.4
Thus, given the lack of dispositions regulating such matter, anti-suit
injunctions should be properly positioned within the international legal
order analysing their features and their consideration within different
jurisdiction. They also deserve to be analysed with regard to international
1
EMMANUEL GAILLARD, Anti-Suit Injunctions in International Arbitration, IAI Series on
International Arbitration No. 2, (E. Gaillard ed. 2005).
2
GARY B. BORN, International Commercial Arbitration, 2nd Edition, (Kluwer Law
International, 2014), 1290.
3
A.V. DICEY, J.H.C. MORRIS, COLLINS L., Dicey, Morris & Collins on the Conflict of Laws,
(15th
ed. 2012), 12-090.
4
S. SCHWEBEL, Anti-suit Injunctions in International Arbitration – An Overview, in
International Arbitration No. 2, (E. Gaillard ed. 2005).

12
legal principles, in order to peruse their compliance and their real
usefulness within the international arbitration field.
First of all, anti-suit orders in the international arbitration context
represent a form of court involvement within the arbitration proceedings.
Indeed, arbitration is not a dispute resolution completely autonomous
method, it is not flatly separated from national laws and national judicial
systems, and its interaction with both national courts and laws should be
deeply analysed by the parties at the time of the arbitration agreement’s
conclusion. For example, the 2010 survey conducted by Queen Mary,
University of London, and White and Case has shown that the choice of
the seat of the arbitration is mostly influenced by the “formal legal
infrastructure” of a country, namely “the national arbitration law, track
record in enforcing agreements to arbitrate and arbitral awards, neutrality
and impartiality of the legal system”, as showed by the following graph.5
5
Queen Mary and White & Case 2010 International Arbitration Study, Choices in
International Arbitration, (October 2010), available at:
http://www.whitecase.com/files/upload/fileRepository/2010-International-Arbitration-
Survey-Choices-International-Arbitration.PDF

13
This does not mean that the theory (or it could be better said “the
dream”) of an autonomous arbitration should be abandoned, as sustained
by Professor Julian D.M. Lew.6
Arbitration remains a largely self-regulating
dispute resolution mechanism7
that needs the support of national courts in
specific situations. Anti-suit injunctions aimed at enforcing a violated
arbitration agreement could represent one of these situations. However,
the recourse to these measures has been strongly beaten by civil law
countries due to the fact that anti-suit orders would undermine some
relevant principles like the mutual trust between courts, and they have
been seen as an interference with the field traditionally controlled by the
public law domain. Thus, there is a state of uncertainty surrounding the
matter of anti-suit injunctions, and nowadays they appear strongly
refused and banned within the European Union systems even though they
continue to be used outside Europe.
This dissertation investigates what are anti-suit injunctions issued by state
court, in which situations they had been used, where they are accepted
and issued and where, at the contrary, they are strongly refused, and if
they could be considered compliant with regard to national systems and
international law.
The first chapter illustrates the various forms of courts involvement within
arbitration proceedings in order to sketch the framework in which the
anti-suit injunctions are issued. This chapter outlines the various
measures adoptable by national courts in support of arbitration in a pre-
arbitration phase, during the pending of the proceedings and after the
arbitral proceedings, when the arbitral award needs to be recognized and
enforced.
6
JULIAN D. M. LEW, Achieving the Dream: Autonomous Arbitration, (2006) 22(2)
Arbitration International 179.
7
Ibid.

14
The second chapter provides a definition of what an anti-suit injunction is
and shows why “anti-suit injunction” should be considered as an “umbrella
term”.8
The historical background of anti-suit injunctions will then be
presented, together with a comparative analysis explaining why anti-suit
orders are allowed and accepted by common law systems and why the
same situation does not occur within civil law countries.
The third chapter peruses the nature of the anti-suit injunctions issued by
state courts outlining their legal basis, their prerequisites and the
complexity characterizing their enforcement-phase, always in a
comparative perspective.
Finally, the fourth chapter, analyses the compliance of anti-suit injunctions
with regard to the international context and the more restrictive European
system. In particular, it aims at showing how the international legal
system does not provide any disposition or guideline for the regulation of
anti-suit reliefs and, differently, how the European context - especially
after the ECJ’s West Tankers judgment – seems to refuse and ban the
recourse to such measures for proceedings subjected to European courts.
8
OLIVIER LUC MOSIMANN, Anti-suit injunctions in international commercial arbitration,
(Eleven international publishing, 2010), 7.

15
1 FORMS OF THE COURTS INVOLVEMENT IN
INTERNATIONAL ARBITRATION
1.1 Courts involvement
When the parties decide to enter into an arbitration agreement they
implicitly express their intention to settle all the disputes covered by such
agreement by arbitration. As a consequence, the parties give up the
possibility to obtain a resolution of the dispute before a State court.9
More
precisely, the conclusion of an arbitration agreement indicates the will of
the parties to refer the resolution of a rising dispute to a so-called “private
jurisdiction”. The parties’ autonomy represents a main force within
international arbitration, and the agreement to arbitrate is at the base of
the arbitrators’ jurisdiction.10
As stated by G. Born, “although arbitration
clauses typically do not provide expressly that ‘all disputes shall be
resolved by arbitration, to the exclusion of national courts’, this negative
obligation is the undisputed meaning of virtually all arbitration
agreements”11
. This is what is called the negative effect of the arbitration
agreement.12
Nonetheless, it cannot be thought that national courts do not play any role
in the field of international arbitration. In order to sketch the features of
this role, a digression is necessary to illustrate the legal nature of
international arbitration and the different points of view held up by
different commentators.
9
JULIAN D. M. LEW, Comparative International Commercial Arbitration, (The Hague:
Kluwer 2003), 355.
10
JULIAN D. M. LEW, Achieving the Dream: Autonomous Arbitration, (2006) 22(2)
Arbitration International.
11
GARY B. BORN, International Commercial Arbitration, (Kluwer Law International, 2014),
1274
12
Ibid., 1274-1277.

16
A first theory concerning the legal nature of international arbitration is the
so-called “jurisdictional” theory.13
Such a theory supports the idea that
arbitration needs the control of a national law system and may only take
place within the jurisdiction of a state. Based on this thesis, the autonomy
of the parties, while remaining one of the main aspects of arbitration,
meets some limits. In the words of A. Redfern, J. Martin Hunter, N.
Blackaby and C. Partasides:
Arbitration may depend upon the agreement of the
parties, but it is also a system built on law and which
relies upon that law to make it effective both nationally
and internationally. National courts could exist without
arbitration, but arbitration could not exist without the
courts.14
On the other hand, another party autonomy-based theory states that
arbitration has a “contractual” character. Following this thesis, an arbitral
proceedings cannot exist without an agreement to arbitrate and the
arbitration process – from the appointment of the arbitrators to the
arbitrators’ power and the binding force of the award – is entirely based
on the parties’ agreement.15
The strength of this contractual nature is the
substantial parties’ monopoly to influence most of the aspects of
arbitration.
13
Cf. A. JAN VAN DEN BERG, The New York Convention of 1958, Towards a Uniform Judicial
Interpretation (1981), available at
http://www.newyorkconvention.org/publications/nyac-i; William W. Park, The Lex Loci
Arbitri and International Commercial Arbitration, [1983] 32 ICLQ 2.
14
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, International
Arbitration, (Oxford University Press 2009), 439.
15
ANDREW BARRACLOUGH, JEFF WAINCYMER, Mandatory Rules of Law in International
Arbitration, (2005) 6(2) Melbourne Journal of International Law, 20.

17
Nevertheless, none of the two theories succeeds in embracing all the
features of arbitration. For this reason, some commentators 16
try to
elaborate a third theory on arbitration endorsing the hybrid nature of such
alternative disputes resolution method. According to the “hybrid theory”,
arbitration is composed by the two main characteristics of the previous
theses:
(i) the authority of the local law,
(ii) the party agreement.
Unfortunately, not even the “hybrid theory” can embrace all the other
relevant aspects of arbitration (for instance, the nature of the arbitrators
role).17
In the last few years, a fourth theory has been formulated: it is the idea
that arbitration forms an autonomous entity as a stand-alone mechanism
to solve disputes.18
Professor Julian D. M. Lew strenuously supports this
theory. A similar theory has been elaborated by Jan Paulson, the so-called
“delocalised arbitration”.19
According to it, there are some cases in which
international arbitration may be relieved from the local law of the place
chosen as seat of the proceedings.
Notwithstanding the different features characterising all these ideas on
arbitration, none of these theories manages to exclude the actual need for
a court involvement in specific cases during the arbitration proceedings.
In the words of William G. Bassler:
International arbitration does not exist in some kind of
Platonic world independent of national legislation and
16
JULIAN D. M. LEW supra note 10, 186.
17
Ibid.
18
Ibid.
19
See JAN PAULSON, Delocalisation of International Commercial Arbitration: When and Why
it Matters, [1983] 32 Int’l & Comp. L.Q. 53.

18
judicial systems. On the contrary, court involvement is
necessary to the proper functioning of arbitration.20
The relationship between national courts and arbitration tribunals has
been defined by some commentators 21
as a “partnership”, but not
composed by equals.22
Even though arbitration keeps its own and deep
autonomous nature, its boundaries are drawn by national legislation and
enforced by courts. More precisely, it is possible to sustain that the
relationship between the private jurisdiction and the public one appears as
a “relay-race”23
, as stated by Lord Mustill:
“Ideally, the handling of arbitral disputes should resemble
a relay race. In the initial stages, before the arbitrators
are seized of the dispute, the baton is in the grasp of the
court; for at that stage there is no other organisation
which could take steps to prevent the arbitration
agreement from being ineffectual. When the arbitrators
take charge they take over the baton and retain it until
they have made an award. At this point, having no longer
a function to fulfil, the arbitrators hand back the baton so
that the court can in case of need lend its coercive powers
to the enforcement of the award.”24
20
WILLIAM G. BESSLER, The Symbiotic Relationship Between International Arbitration and
National Courts, (2013) 7 Dispute Resolution International, 102.
21
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra note 14;
see also BERTHOLD GOLDMAN, The Complementary Roles of Judges and Arbitrators in
Ensuring that International Commercial Arbitration is Effective, in International
Arbitration – 60 years of ICC Arbitration –Look at the Future 257, (ICC Pubblication No.
412, 1984).
22
Ibid.
23
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra note 14,
441.
24
LORD MUSTILL, ‘Comments and Conclusion’ in Conservatory Provisional Measures in
International Arbitration, 9th
Joint Colloquium (ICC Publication, 1993).

19
According to the opinion of many commentators25
, such idea of a sharp
separation between the activity of the national courts and the arbitral
tribunals cannot be totally shared. Nowadays there is a general
consensus, within the business community, regarding the independent
status of arbitration with respect to the national legislation and
jurisdiction, and this consensus has helped the arbitration move away
from the risk of domestic judicial parochialism.26
Nevertheless, affirming
that the baton is in the grasp of the national court at the beginning of the
arbitration proceedings (when arbitrators are not yet seized) and it will be
again only at the moment of the award enforcement, would be at least
equivocal. Indeed, as Lord Mustill states:
“In real life the position is not so clear-cut. Very few
commentators would now assert that the legitimate
functions of the Court entirely cease when the arbitrators
receive the file, and conversely very few would doubt that
there is a point at which the Court takes on a purely
subordinate role. But when does this happen? And what is
the position at the further and of the process? Does the
Court retake the baton only and when invited to enforce
the award, or does it have functions to be exercised at an
earlier stage, if something has gone wrong with the
arbitration, by setting aside the award or intervening in
some other way?”27
Hence, sustaining the independence position of arbitration is possible but
this does not mean that a strict separation from national jurisdiction
exists. National courts are invested with specific powers not only in a pre-
25
MARKHAM BALL, The Essential Judge: the Role of the Courts in a System of National and
International Commercial Arbitration, (2006) 22(1) Arbitration International, 75-76; see
also WILLIAM G. BESSLER, supra note 20.
26
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra note 14.
27
LORD MUSTILL, supra note 24.

20
arbitration phase or after the proceedings, but also while arbitration
proceedings are pending.
Normally, court intervention is admissible in two cases28
, namely:
(i) where the arbitration agreement expressly provides for the
intervention;
(ii) at the occurrence of a issue not covered by the arbitration
agreement.
1.2 Pre-arbitration
The first moment in which a national court has the possibility to intervene
in the proceedings is, paradoxically, at a time in which the proceedings is
not yet established.
Particularly, three situations characterised by the need of a court
intervention could occur29
:
(i) the enforcement of the arbitration agreement;
(ii) the establishment of the tribunal; and
(iii) challenges to jurisdiction.
Finally, during the pre-arbitration phase, the intervention of a judicial
court could occur whether one of the parties seek the rendering of interim
measures before a state court as well.
1.2.1 Enforcing the arbitration agreement
Usually, parties that have agreed to arbitrate do not have the need to
issue a dispute before a national court because they usually proceed
voluntarily to arbitrate when and if a dispute arises.
28
JULIAN D. M. LEW, supra note 9, 359.
29
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra note 14.

21
Nevertheless, one of the parties may decide to start a proceedings before
a state court, rather than follow the road chose earlier concluding an
arbitration agreement. This type of situation is regulated by international
legislations and usually also by national legislations.
The most of courts have the duty to enforce the agreement to arbitrate
pursuant to article II(3) of the New York Convention. Such a provision
states that:
The court of a Contracting State, when seized of an action
in a matter in respect of which the parties have made an
agreement within the meaning of this article, shall, at the
request of one of the parties, refer the parties to
arbitration, unless it finds that the said agreement is null
and void, inoperative or incapable of being performed.30
The provision contains a mandatory obligation for national courts to stay
the court proceedings and refer the parties to arbitration. Indeed, as
sustained by Professor Albert van den Berg, there is sort of wide
agreement between courts that the language used into such a provision
does not leave any discretion to courts’ activity.31
Art. II(3) governs one
aspect of the Competence-Competence principle, which is a widely
accepted principle in the international context even if it differs for
important features from country to country. 32
Such aspect is called
negative effect and is to limit the boundaries of the court’s role in
examining the arbitral tribunal’s jurisdiction. The New York Convention
seems to strictly apply the negative effect since national courts are
30
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,
1958) (hereinafter the "New York Convention"), Art. II(3).
31
ALBERT VAN DEN BERG, “The New York Convention of 1958: An Overview”, in The
Enforcement of Arbitration Agreements and International Arbitral Awards (CMP
Publishing, 2008).
32
HERBERT KRONKE, PATRICIA NACIMIENTO, Recognition and Enforcement of Foreign Arbitral
Awards: a Global Commentary on the New York Convention, (Kluwer Law International,
2010), 94.

22
obliged to refer the parties to arbitration where the case fulfils the
requirements provided in article II(3).33
The strength of such a mandatory
power would eventually supersede domestic law, even in the case in which
the latter gives to the court a discretionary power in deciding whether or
not stay a proceedings brought in breach of an arbitration agreement.
Nevertheless, it is important to underline that the court’s mandatory
power shall operate only if a party invoke the arbitration agreement, as
provided by article II(3) when it uses the words: ”at the request of one of
the parties”. If a party does not invoke the arbitration agreement, the
court will go forward in hearing the merit, unless it lacks jurisdiction for
other reasons.
In referring the parties to arbitration, the Court must verify that a number
of requirements imposed by the New York Convention are fulfilled:34
(i) The arbitration agreement must fall under the Convention;
(ii)There must be a dispute;
(iii) The dispute must come within the scope of the
arbitration agreement;
(iv) The arbitration agreement has to be in writing (as
provided by article II(2) of the Convention);
(v)The arbitration agreement shall not be ‘null and void,
inoperative or incapable of being performed’; and
(vi) The subject-matter must be capable to settlement by
arbitration.
Also the UNCITRAL Model Act (in its 2006 version) contains a provision
aimed to apply the negative effect of Competence-Competence and to
regulate the interference between national courts and arbitration
proceedings. In fact, the Model Law 2006 provides that the court had to
refer the parties to arbitration when they brought an issue covered by the
33
Ibid.
34
Ibid.

23
arbitration agreement before a national court. The provision is very similar
to Article II(3) of the New York Convention, it only adds the prevision of a
deadline for the party’s request (“not later than when submitting his first
statement on the substance of the dispute”).35
Dealing with national laws, the negative effect of Competence-
Competence is applied in different ways from countries to countries,
generally belonging to the civil law system. For example, French law
broadly recognised the negative effect of Competence-Competence
pursuant to Article 1458 of the French Civil Code Procedure. Such
disposition provides that the national courts must declare their
incompetence when a dispute already pending before an arbitral tribunal
is brought before national courts. Moreover, even in the case in which the
dispute is not pending before the arbitral tribunals but an arbitration
agreement has already been concluded, the national courts should decline
jurisdiction unless a manifest invalidity (“null or void”) of the arbitration
agreement. Differently, German law is more hesitant in applying the
negative effect and seems to allow delay tactics.36
Another issue that deserve to be analysed is the way by which the request
to enforce an arbitration agreement may come before a Court. There are
three ways in which such a situation could occur37
:
35
UNCITRAL Arbitration Rules (as revised in 2006), Art. 8.
36
See section 1032 of the German Code of Civil Procedure providing as follow:
(1) A court before which an action is brought in a matter which is the subject of an
arbitration agreement shall, if the respondent raises an objection prior to the beginning
of the oral hearing on the substance of the dispute, reject the action as inadmissible
unless the court finds that the arbitration agreement is null and void, inoperative or
incapable of being performed.
(2) Prior to the constitution of the arbitral tribunal, an application may be made to the
court to determine whether or not arbitration is admissible.
(3) Where an action or application referred to in subsection 1 or 2 has been brought,
arbitral proceedings may nevertheless be commenced or continued, and an arbitral
award may be made, while the issue is pending before the court.
See also PATRICIA NACIMIENTO, STEFAN MICHAEL KRÖLL, KARL-HEINZ BÖCKSTIEGEL, Arbitration in
Germany: The Model Law in Practice, (Kluwer Law International, 2007), 139.
37
International Commercial Arbitration, (2006) 22(1) Arbitration International, 75-76.

24
In the first case, one of the parties disregards the arbitration clause in the
contract or takes the position that the clause do not apply to a particular
dispute and decides to bring a lawsuit before a national court. In such a
case, when a court finds that the parties have previously agreed on
arbitration, the court has generally the duty to refer the parties to
arbitration (UNCITRAL Model Act, Article 8(2)).
In the second case, a party may decide to bring a lawsuit before a
national court for seeking an order by which the court enjoin the
counterpart to arbitrate. However, a similar provision only exists in few
countries. An example of this is the US Federal Arbitration Act in its
Section 4 where provides:
Section 4. Failure to arbitrate under agreement; petition
to United States court having jurisdiction for order to
compel arbitration; notice and service thereof; hearing
and determination
A party aggrieved by the alleged failure, neglect, or
refusal of another to arbitrate under a written agreement
for arbitration may petition any United States district
court which, save for such agreement, would have
jurisdiction under Title 28, in a civil action or in admiralty
of the subject matter of a suit arising out of the
controversy between the parties, for an order directing
that such arbitration proceed in the manner provided for
in such agreement. Five days'' notice in writing of such
application shall be served upon the party in default.
Service thereof shall be made in the manner provided by
the Federal Rules of Civil Procedure.
However, outside the FAA, the other modern statutes and also the
UNCITRAL Model Law do not provide any provision on this issue. In other
words, this means that national courts outside the US sphere do not have

25
the power to issue an order by which compel one of the parties to
arbitrate. A problem could arise when a court of a country that did not
enacted the Model Law is asked to decide if it have the inherent and
implied powers in order to issue such order.38
Lastly, the third situation in which a request for the enforcement of an
arbitration agreement could come before a national court is a specific
feature of the US legal sphere. In fact, under the practice in US courts
(this possibility is not expressly authorised by the US Arbitration Act but it
is a creature of case law39
), a party that wishes to contest the validity of
an arbitration agreement can bring a lawsuit before a national courts
seeking an order to enjoin the other party to continue the arbitration.
1.2.2 Establishment of the Tribunal
Once a decision to refer a dispute to arbitration has been made, the
appointment of the arbitral tribunal becomes a very critical issue because
it will determine all the run of the proceedings. If the parties have failed
to establish the arbitrators or the prescribed appointed methods to do so
did not work, the intervention of a national court may become necessary.
Actually, the arbitration rules agreed to by the parties at the beginning of
the arbitration process will usually govern the way in which the arbitrators
shall be appointed, either by the parties or by an arbitral institutions or a
neutral appointing authorities.40
Generally, these rules work well and there
is no need to ask for a court’s intervention or involvement.
38
Ibid.
39
See e.g., PaineWebber, Inc. v. Fowler, 791 F. Supp. 821 (D. Kan. 1992); GARY BORN,
International Commercial Arbitration (2nd ed., 2001), 399, nn. 234-236.
40
See MARKHAM BALL, The Essential Judge: the Role of the Courts in a System of National
and International Commercial Arbitration, (2006) 22(1) Arbitration International.

26
However, in the rare case in which such laws not provide any solution for
the establishment of the arbitral tribunal, the parties should look firstly to
the seat of the arbitration.41
For example, in the UK, the English Arbitration Act 1996 assigns to the
court some specific powers:
(i) to give directions as to the making of any necessary
appointments;
(ii) to direct that the tribunal shall be constituted by such
appointments (or any one or more of them) as have been made;
(iii) to revoke any appointments already made; or
(iv) to make any necessary appointments itself.
1.2.3 Challenges to jurisdiction
An arbitral tribunal is allowed to resolve only disputes submitted under its
jurisdiction by the conclusion of an arbitration agreement and such rule is
a consequence of the two adopted principles of party autonomy and
voluntary nature of arbitration.42
Nowadays, it is general accepted that the
arbitral tribunal has the power to decide upon its own jurisdiction and this
doctrine – as mentioned above - is named Competence-Competence.
Such a theory has been developed in order to overcome the problems
arising from the consensual nature of arbitration when someone puts in
challenge the validity of the arbitration agreement.43
A challenge to the jurisdiction of the arbitral tribunal could be partial or
total. It is partial when it wonders if certain claims (but not all) issued
before the arbitral tribunal are affectively within its jurisdiction; this type
41
42
Ibid., 340.
43
See NADJA ERK, Parallel Proceedings in International Arbitration: a Comparative
European Perspective, (Kluwer Law International, 2014).

27
of challenge is usually issued in engineering arbitration where is always
present a long list of claims. On the other hand, a challenge to jurisdiction
of the arbitral tribunal is total when it wonders whether a valid arbitration
agreement really exist.
The parties could afford any decision given by the arbitral tribunal, stating
that it effectively has jurisdiction on the dispute, in different ways; one of
them is apply to a national court in order to resolve the dispute. Such
application is usually made before the courts at the seat of the
arbitration.44
1.2.4 Interim measures
A conflicting topic involving the possible need of a court intervention in
international arbitration is interim protection of rights. In fact, as stated
by Ali Yesilimark: “the main question concerning interim protection of
rights in arbitration is which forum to seek such protection. There are
traditionally two main for a: arbitral tribunals and national courts”45
.
However, before starting to explain which problems and shortcomings
related to courts intervention are involved in this topic, I would like to give
a definition of interim measures and draw the boundaries they are
subjected in international arbitration.
Actually, a widely accepted definition of what interim measures are does
not exist due to the lack of conformity on such a concept in public and
international law. As a consequence, nor is a definition found in
international arbitration.46
Gary Born define interim measures as “awards
44
Ibid.
45
ALI YESILIMARK, Provisional Measures in International Commercial Arbitration, (Kluwer
Law international, 2005), 47.
46
Ibid.

28
or orders issued for the purpose of protecting one or both parties to a
dispute from damage during the course of the arbitral process”47
.
Nowadays, it is broadly accepted that arbitral tribunals play the role of
natural judge in ordering interim measures of protection when an
arbitration agreement is in force between the parties. Thus, under most
legal systems, when a dispute is covered by a valid arbitration clause
invoked in due time by one of the parties, such clause gives rise to an
“arbitration exception”, which take away the possibility for a judicial court
to deal with the dispute.48
However, even if an arbitral agreement is in
force between the parties, there are circumstances in which a State Court
intervention became necessary. In particular, with regard to interim
measures, the arbitral tribunal’s powers may be insufficient and thus
render appropriate or even necessary the intervention of a State court.49
Under this point of view, supported for instance by Alan Redfern, it is
possible to affirm that exists a concurrent jurisdiction between arbitral
tribunal and national courts for the temporary protection of rights. There
are several reasons in order to sustain the above assertion and such
motives are connected with the shortcomings and problems that arbitral
tribunals have to afford in order to assure a wide, even if provisional,
protection of the parties’ rights
(i) The arbitral tribunal cannot issue interim measures when it is
not yet established.
(ii) The arbitrators have not powers over third parties due to the
consensual nature of the arbitration.
(iii) The arbitral tribunals have not coercive powers permitting
them to enforce their decisions.
47
GARY B. BORN, International Commercial Arbitration, 2nd Edition, (Kluwer Law
48
CHARLES PRICE, Conflict with State Courts, in Interim Measures in International
Commercial Arbitration, Association for International Arbitration, (Maklu Publishers,
2007), 39.
49
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra 14, 444.

29
(iv) The arbitral tribunals may hesitate in granting interim
measures, due to the fear of fall down into a liability or the
attempt to not appear to favour a party.
(v) The decision of an arbitral tribunal could be more slow than
one issued by a national court; this is due to its composition
made by different members living in different countries.
(vi) It could occur that the arbitrators appointed for a specific
proceedings do not have a legal background and, from such a
situation, could follow a lack of the proficiency required in
order to issue an adequate arbitration proceedings.
In addition, a request to a judicial authority to grant interim measures is
not something in contrast with the arbitration agreement. This is called
doctrine of compatibility.50
Such a doctrine is based on two main principles
that represent inevitable conclusions of the theorised concurrent
jurisdiction. The first principle is that a request to a judicial authority to
issue interim measures is not a waiver from the arbitration agreement,
and, the second one, is that the existence of an arbitration agreement
does not impede the possibility of a national court to grant interim
measures.
Dealing with the pre-arbitration phase, it is worth analysing the arbitral
tribunal’s incapability to issue interim measures when such tribunal has
not yet been established.
The establishment of the arbitral tribunal is a procedure that takes time
and, during that time, evidence or assets may be irreparably damaged.
This limitation could have a serious practical importance, given that the
outset of the arbitration is probably the most critical time in order to seek
interim measures.51
This is the reason why, nowadays, under the most
legal systems and rules, the national courts are appointed with a
50
NEIL E. MCDONNELL, Availability of Provisional Relief in International Commercial
Arbitration, [1983-1984] 22(56) Colum. J. Transnat’l L. 273, 283.
51
GARY B. BORN, supra note 47.

30
concurrent jurisdiction with arbitral tribunals in order to grant interim
measures. It is also the reason why some arbitral institutions have try to
developed alternative procedures for providing interim protection at the
outset of the arbitral process. The most important one, in my opinion, is
the approach adopted by the 2012 ICC Rules. In fact, art. 29(1)-(4) of the
2012 ICC Rules provides52
:
(1) A party that needs urgent interim or conservatory
measures that cannot await the constitution of an
arbitral tribunal (“Emergency Measures”) may make
an application for such measures pursuant to the
Emergency Arbitrator Rules in Appendix V. Any such
application shall be accepted only if it is received by
the Secretariat prior to the transmission of the file
to the arbitral tribunal pursuant to Article 16 and
irrespective of whether the party making the
application has already submitted its Request for
Arbitration.
(2) The emergency arbitrator’s decision shall take the
form of an order. The parties undertake to comply
with any order made by the emergency arbitrator.
(3) The emergency arbitrator's order shall not bind the
arbitral tribunal with respect to any question, issue
or dispute determined in the order. The arbitral
tribunal may modify, terminate or annul the order
or any modification thereto made by the emergency
arbitrator.
(4) The arbitral tribunal shall decide upon any party’s
requests or claims related to the emergency
arbitrator proceedings, including the reallocation of
the costs of such proceedings and any claims
52
2012 ICC Arbitration Rules, Art. 29(1)-(4).

31
arising out of or in connection with the compliance
or non-compliance with the order.
The rule only provides a temporary solution, for this reason the
parties have to comply with the order issued by the emergency
arbitrator but such an order is not binding for the arbitral tribunal
once established.
1.3 Powers while arbitration proceedings are pending
Once the baton has been passed to the arbitrators, the need of a court
intervention should not be necessary anymore during the arbitration.
However, while the arbitration is pending, a national court could be
involved in the arbitral process in many cases, most of them concerning
with the tribunal’s lack of coercive powers in order to well conduct the
arbitration, the rights of the parties or the acquisition of evidence.
Following the scheme proposed by Professor Lew, it is possible to identify
three different forms of court intervention during the arbitral
proceedings53
:
(i) Orders related to procedural steps not be ordered or enforced by
the arbitral tribunal;
(ii) Orders directed to maintain the status quo;
(iii) Measures aimed to ensure the enforcement of the arbitral award.
The main difference between these three type of measures is that the first
one has nothing to do with the merit of the dispute because it is related
only to procedural steps, the second one may gradually determine an
encroachment with the merit and, finally, the third one is completely
immersed in issues concerning the merit of the dispute.
53
JULIAN D. M. LEW, supra note 9, 369.

32
Generally, all these measures entail powers aimed to support the court or,
at the contrary, powers aimed to restrict the intervention of the courts.
1.3.1 Extension of time
When the parties choose the rules governing the arbitral proceedings they
also agree on time limits that will regulate all the timetable of the
arbitration, starting from the beginning of the process, passing through
the appointment of the arbitrators or the deadline in order to file
statements, documents, evidence, up to the rendering of the award.
It could occur that one of the actions required is not carried out in time
and, due to this event, the entire proceedings could become ineffective if
an agreed change of the time schedule not succeed. One of the
possibilities to overcome such circumstance is wondering if a national
court could intervene in order to vary or grant an extension of such time
limits.54
Although the majority of laws on arbitration, and also the Model
Act, do not assigned such powers to national courts, there are a scarce
number of national laws that regulate this type of court intervention.
The first I will show is the English law. The Arbitration Act 1996, in fact,
allows the court to grant extensions and modifications of time limits for
the starting of the proceedings55
, the time in which the award has to be
rendered56
and all the other deadlines agreed on by the parties57
. Such
provisions do not mean that the court intervention is quietly free. Indeed,
the Arbitration Act foresees some restrictive conditions that must be
respected in order to allow the court intervention. For example, a court
can extend the time limits related to the starting of the arbitration only if
the following conditions are satisfied:
(3)The court shall make an order only if satisfied—
54
Ibid, 371.
55
England, Arbitration Act 1996, section 12.
56
Ibid, section 50.
57
Ibid, section 79.

33
(a) that the circumstances are such as were outside the
reasonable contemplation of the parties when they agreed
the provision in question, and that it would be just to
extend the time, or
(b)that the conduct of one party makes it unjust to hold
the other party to the strict terms of the provision in
question.58
The second national law providing the mentioned power is the
French law. Under article 1456 of the French Code of Civil
Procedure, the court has the power to extend the time limit given
to the arbitral tribunal in to render the award.59
Such a provision
generally applies to ad hoc arbitration, when the time limit of 6
months disposed by the French code is not enough for assuring the
emission of the award. Nevertheless, the French courts have also
apply such disposition and use their powers in international
arbitrations having their seats in France, without even consider if
the proceedings were submitted to the French law. 60
1.3.2 Determination of question of law
When a question of law arises, generally the determination of such
question is a task belonging to the arbitral tribunal. However, when the
58
England, Arbitration Act 1996, section 12 para. 3.
59
See French Code of Civil Procedure, art. 1456 providing as follow:
Article 1456
If no time limit is fixed in the arbitration agreement for the arbitrators' mission it shall be
six months from the day on which the last arbitrator accepts his mission.
The statutory or contractual time limit for the arbitrators' mission may be extended at
the request of a party or of the arbitral tribunal by the President of the Tribunal de
Grande Instance , or, in the case envisaged by Art. 1444.2, of the Tribunal de Commerce
.
60
See Tribunal de Grande Instance Paris, 3 April 1985, Application des gaz v Wonder
Corp of America, Rev. Arb 170 (1985);

34
question of law concerns issue of public policy or it arises frequently, a
court intervention could be conceivable.61
Actually, neither the Model law
nor most laws on arbitration foresee this hypothesis. Once again, a law
that allow a court intervention in this situation is the English Arbitration
Act. As provided in section 45, paragraph 1 of the Arbitration Act:
Unless otherwise agreed by the parties, the court may on
the application of a party to arbitral proceedings (upon
notice to the other parties) determine any question of law
arising in the course of the proceedings which the court is
satisfied substantially affects the rights of one or more of
the parties.62
Indeed, the English Law expressly allows the intervention of the
court in the specific situation in which the court recognises a
possible threat for the parties’ rights.
1.3.3 Interim measures
During the arbitration proceedings, it may be necessary to dispose orders
to preserve evidence, to protect assets or to maintain the status quo. In
particular, when such orders are addressed to a third party, the arbitral
tribunal can virtually never provide the necessary relief. Thus, the parties
of the arbitration are obliged to seek interim protection before a state
court.
In this section, I will better analyse the interim measures related to
preservation of evidence, attendance of witness and documentary
disclosure that a national court may grant in aid of an arbitral process
61
JULIAN D. M. LEW, supra 9, 372.
62
England, Arbitration Act 1996, section 45, para. 1.

35
1.3.3.1 Preservation of evidence
During the arbitral process, preventing the destruction or the damage of
evidence is a point of vital importance for the fair resolution of the
dispute. Indeed, it could occur that the conclusion of the process is strictly
linked with the evidence that will be filed during the arbitration (for
instance, a dispute over the quality of foodstuffs). In case the evidence is
required at the very outset of the proceedings or it belongs to a third
party, the involvement of a national court could become extremely
necessary. This need for assistance of the court is stated (through others)
by the UNCITRAL Model Law:
The arbitral tribunal or a party with the approval of the
arbitral tribunal may request from a competent court of
this State assistance in taking evidence. The court may
execute the request within its competence and according
to its rules on taking evidence.63
Others arbitration laws provide disposition granting the State courts’
intervention in aid of the arbitral tribunal for the preservation of evidence.
England, for examples, recognize to both arbitral tribunals and national
courts the power to order interim measures of protection but, at the same
time, assign to the national court a sort of subsidiary role.64
Thus, section
44 of the English Arbitration Act 1996, stating the courts’ powers
exercisable in support of arbitral proceedings, appoints the judicial court
with the same powers belonging to the arbitral tribunal in such a
circumstance. Such powers are those that allow the arbitral tribunal to
63
UNCITRAL Model Law, art. 27.
64
Donald Francis Donovald, “The Allocation of Authority Between Courts and Arbitral
Tribunals to Order Interim Measures A Survey of Jurisdictions, the Work of UNCITRAL
and a Model Proposal”, in ALBERT JAN VAN DEN BERG (ed), New Horizons in International
Commercial Arbitration and Beyond, ICCA Congress Series, 2004 Bejing Volume 12,
(Kluwer Law International 2005), 212.

36
issue orders for the preservation of evidence or the inspection,
photographing or preservation of property.65
Section 44. Courts powers exercisable in support of
arbitral proceedings
(1) Unless otherwise agreed by the parties, the court has
for the purposes of and in relation to arbitral proceedings
the same power of making orders about the matters listed
below as it has for the purposes of and in relation to legal
proceedings.
(2) Those matters are—
[…]
(b) the preservation of evidence;
(c) making orders relating to property which is the
subject of the proceedings or as to which any question
arises in the proceedings—
(i) for the inspection, photographing, preservation,
custody or detention of the property, or
(ii) ordering that samples be taken from, or any
observation be made of or experiment conducted upon,
the property.
1.3.3.2 The attendance of witnesses
Sometimes it may be necessary to compel the attendance of one or more
witnesses in the arbitral proceedings. Since the arbitral tribunal has not
always the coercive power to obtain such attendance, the parties may ask
to a national court to grant an interim measure on this issue. In particular,
such a situation could occur when working relations or any other type of
65

37
relationship with the parties does not bind the relevant witnesses. As
already said above66
, the UNCITRAL Model Law allows the assistance of a
national court in these type of situations and others national arbitration
laws, that do not incorporated per se the Model Law, regulate such issue
in the same way.67
Alternatively, others national arbitration laws, as the
English Arbitration Act 1996, try to draw an own and more precise
position in this matter. 68
Indeed, the disposition allows the arbitral
tribunal or one of the parties to use the same court procedures as
available in a legal proceedings in order to assure the attendance of
witnesses. Such a possibility is submitted to limitations as the need for the
witness being in England and the arbitral process has its seat in England,
Wales or Northern Ireland.
1.3.3.3 Documentary disclosure
In the course of the arbitral proceedings, the parties are required to
present the documents they rely to. Indeed, there is a general mutual
duty of documentary disclosure aimed to the ascertainment of the real
truth.69
In particular, as stated by Bernard Hanotiau, “the parties in
66
See paragraph 2.3.1.3.1.
67
See Swiss Private International Law Act 1987, Art. 184(2).
68
See English Arbitration Act 1996, Section 43, providing as follow:
Section 43 - Securing the attendance of witnesses.
(1)A party to arbitral proceedings may use the same court procedures as are available in
relation to legal proceedings to secure the attendance before the tribunal of a witness in
order to give oral testimony or to produce documents or other material evidence.
(2)This may only be done with the permission of the tribunal or the agreement of the
other parties.
(3)The court procedures may only be used if—
(a)the witness is in the United Kingdom, and
(b)the arbitral proceedings are being conducted in England and Wales or, as the case
may be, Northern Ireland.
(4)A person shall not be compelled by virtue of this section to produce any document or
other material evidence which he could not be compelled to produce in legal proceedings.
69
JEFF WAINCYMER, Procedure and Evidence in International Arbitration, (Kluwer
International Law, 2012), 829.

38
dispute should co-operate in the presentation of the truth by producing all
the elements of evidence which they have in their possession”.70
However, it could occur that a relevant evidence is in the possession of a
third party and the powers of the arbitral tribunal are limited to the
parties.71
Depending on cases, the arbitration laws may provide specific
powers for arbitral tribunals in order to oblige a third party to disclose the
required documents in the arbitral proceedings, or allow the seeking of
such a disclosure order before a judicial court. In particular, a significant
and potential new course has been setting in the US in relation to third
party’s documentary disclosure.
Section 1782 of the United States Code authorises US courts to provide
assistance in relation to issues brought before a foreign tribunals. In
detail, the disposition provides as follow:
The district court of the district in which a person resides
or is found may order him to give his testimony or
statement or to produce a document or other thing for
use in a proceeding in a foreign or international tribunal
[…]72
The interpretation of such a disposition is controversial, particularly
regarding the field of application. Until 2006, case law has confirmed that
the “foreign or international tribunal” had to be interpreted only as judicial
courts and the meaning had not to be extended to international
arbitration. 73
In 2004, in the case of Intel Corp v Advanced Micro
70
BERNARD HANOTIAU, ‘Document Production in International Arbitration: A Tentative
Definition of “Best Practices”’, in Document Production in International Arbitration, ICC
International Court of Arbitration Bulletin, 2006 Special Supplement, ed. ICC (Paris ICC
Publishing, 2006), 114.
71
ALAN REDFERN, J. MARTIN HUNTER, NIGEL BLACKABY, CONSTANTINE PARTASIDES, supra note 65,
453.
72
U.S. Code, § 1782.
73
See National Broadcasting Co, Inc v Bear Stearns &Co, Inc, 165 F 3d 184 (2nd
Cir
1999); Republic of Kazakhstan v Biedermann International, 168 F 3d 880 (5th
Cir 1999).

39
Devices74
, the Supreme Court extended the interpretation of the word
“tribunal” to the Directorate-General of Competition for the Commission of
the European Union stating that the “foreign or arbitral tribunal” had to be
interpreted also as administrative body. Finally, after few years, the same
reasoning has been applied to arbitral tribunal in the case entitled In Re
Roz Trading 75
. This interpretation has not been without critics. In
particular, some commentators have noted a disparity of treatment that
arises from such interpretation due to the possibility given to a foreign
party to obtain evidence situated in the US without assuring the same
possibility to US party in a foreign country.
1.3.3.4 Anti-suit injunctions
The Anti-suit injunctions are order directed to a party to not commence a
suit in another forum and they represent on of the most controversial
issue dealing with courts intervention in international arbitration
proceedings. I will conduct the analyses of such means in the next
chapters of my thesis, since the characters, the regulation and the debate
on Anti-Suit injunctions will be the core of my dissertation.
1.4 Powers after proceedings
Once all the procedural steps required have been fulfilled, the ultimate
mandate of an arbitral tribunal is to render a final and binding
determination called the award.76
If one of the parties seeks to set aside
74
Intel Corp. v. Advanced Micro Devices, Inc. (02-572) 542 US 241 (2004)
292 F 3d 664
75
In re Roz Trading Ltd., 469 F Supp 2d 1221 (ND Ga. 2006).
76
JEFF WAINCYMER, Procedure and Evidence in International Arbitration, (Kluwer Law

40
or to enforce the award rendered by the arbitral tribunals, the
involvement of a national court after the proceedings became necessary.
Every country, which has incorporated the UNCITRAL Model Law, allows
the recognition and the enforcement of the arbitral award by a State court
when a party presents its award to the court. Art. 35 of the Model Law
states as follow:
(1) An arbitral award, irrespective of the country in which
it was made, shall be recognized as binding and, upon
application in writing to the competent court, shall be
enforced subject to the provisions of this article and of
article 36.77
This disposition seems to apply to both domestic and foreign
awards.
Moreover, for what concerns only the foreign awards, the New York
Convention provides:
This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a
State other than the State where the recognition and
enforcement of such awards are sought, and arising out
of differences between persons whether physical or legal.
It shall also apply to arbitral awards not considered as
domestic awards in the State where their recognition and
enforcement are sought.78
Thus, the enforcement of arbitral award represents an other
relevant function that state courts are called to perform in order to
satisfy the successful party of the arbitral proceedings. However,
77
UNCITRAL Model Law, art. 35(1).
78
New York Convention, Art. 1(1).

41
the national courts are not subject to an absolute duty to recognise
and enforce the arbitral award since there are some grounds on
which the courts may set an award aside.79
Given that an award
must be enforced only if it respect some standards required by law
and the national courts have the duty to determine when such
standards are effectively met by the award.
79
International Commercial Arbitration, (2006) 22(1) Arbitration International, 79.

43
2 ANTI-SUIT INJUNCTIONS
2.1 Definition and terminology
The matter of the resolution of disputes can often represent a fecund field
for the raising of new disputes. This happens because the economical
globalisation and worldwide economic relationships led to a proliferation of
international disputes and, as a consequence, of different competing fora
in the international context. It could occur that parties seek to be sued in
different forums without reaching an agreed solution between them.
Furthermore, it could also occur that a party tries to shop a more
convenient forum notwithstanding the fact that an arbitration agreement
or a jurisdictional agreement has already been concluded.80
This is the
typical context in which it is possible to observe the rise of anti-suit
injunctions.81
The previous chapter analysed how national courts can intervene, and in
some way, interfere within arbitral proceedings, and one of the most
controversial and disputed way by which such interference, both directly
or indirectly, could occur is by granting anti-suit orders.
The anti-suit injunctions are orders issued by a court aimed to compel a
party not to commence or continue a lawsuit in another forum.82
The
reason for their creation is the protection of a forum’s jurisdiction. Indeed,
they are issued by a court with the aim to establish that a forum’s
jurisdiction has to prevail over the one belonging to another court.83
80
FRANCO FERRARI, “Forum Shopping in the International Commercial Arbitration Context:
Setting the Stage”, in Forum Shopping in the International Commercial Arbitration
Context, (Sellier European Law Publishers, 2013).
81
ALEXANDER LAYTON, “Anti-arbitration Injunctions and Anti-suit Injunctions: An Anglo
European Perspective”, in Forum Shopping in the International Commercial Arbitration
Context, (Sellier European Law Publishers, 2013).
82
TREVOR C. HARTLEY, Comity and the Use of Antisuit Injunctions in International
Litigation, (1987) 35 American Journal of Comparative Law, 487.
83
JEAN-FRANÇOIS POUDRET, SÉBASTIAN BESSON, Comparative Law of International Arbitration,
(2nd Ed., Thomson Sweet & Maxwell, 2007), 915.

44
Initially, anti-suit injunctions were a technique used by common law
judges when they considered that they had jurisdiction over a particular
case or when they wanted to protect another court’s jurisdiction.84
The
recourse to this type of orders has incredibly increased in the field of
international arbitration during the last decades, and such orders are
issued in order to protect arbitration or, on the contrary, to disrupt
arbitration.85
Such an increase can be observed especially in common law
courts (like England, US, India or Pakistan) but also in courts belonging to
civil law systems (like France, Brazil or Venezuela).86
The wording “anti-suit injunction”, if considered in relation to international
arbitration, may be defined as an “umbrella term”87
since it refers to
orders having different aims. Indeed, the term “anti-suit” may refer to
anti-suit injunctions, anti-arbitration injunctions and anti-anti-suit
injunctions.88
In particular, anti-suit injunctions are orders by which to
restrain a party from commencing or continuing a proceedings before a
national court.89
In the field of international arbitration, such anti-suit
orders are used in support of arbitration enjoining a party to refrain from
initiating or continuing a proceedings before foreign courts in breach of an
arbitration agreement.90
In the Angelic Grace91
, an injunction was granted
to restrain a proceedings in Italy, because such proceedings had been
started in violation of an arbitration agreement by which the party had
chosen to subject any rising disputes to arbitration in England. The use of
84
EMMANUEL GAILLARD, Legal Theory of International Arbitration, (Martinus Nijhoff
Publishers, 2010).
85
Ibid.
86
EMMANUEL GAILLARD, Il est interdit d’interdire: réflexions sur l’utilisation des anti-suit
injunctions dans l’arbitrage commercial international, (2004) 1 Revue de l’Arbitrage.
87
88
Ibid.
89
Ibid.
90
JEAN-FRANÇOIS POUDRET, SÉBASTIAN BESSON, supra note 83, 1022
91
The Angelic Grace, [1995], 1 Lloyd’s Rep. 87.

45
anti-suit injunctions in support to arbitration is observable in the US case-
law as well.92
Differently, the term “anti-suit” may also mean anti-arbitration
injunctions, where the word “suit” is not used exclusively to indicate a
judicial court, but also including arbitration proceedings.93
In this second
case, “anti-arbitration” injunctions are used to prevent the arbitration in
order to protect the jurisdiction of a State court. Actually, national courts
are generally reluctant to grant such injunctions. Both English and US
courts (England and United States are the common law countries in which
the use of anti-suit injunctions is more wide and accepted) exercise this
power rarely. One of the few cases in which a national court granted an
anti-arbitration injunction is General Electric Company v. Deutz AG.94
In
this case a US court has granted an injunction aimed at stopping an
arbitration proceedings abroad. General Electric had concluded a contract
providing for ICC arbitration in London with a third party. After that, Deutz
joined this agreement. At a certain point, General Electric Company
started a lawsuit against Deutz before a US court alleging a breach of the
contract. Then, Deutz requested an order to compel General Electric to
arbitration pursuant to the arbitration agreement. However, the court
rejected the request filed by Deutz because no arbitration agreement was
effectively in force between Deutz and General Electric. Notwithstanding
the court’s refusal, Deutz started a ICC arbitration. Consequently, General
Electric requested an anti-arbitration injunction in order to enjoin Deutz
from continuing the arbitration in London. The US court issued an anti-
arbitration injunction on the ground of two situations. Firstly, the
arbitration had been started in London threatening the US court’s
92
Paramedics Electromedicina Comercial Ltd. V. G.E. Med. Sys. Info. Tech. Inc., 369 F.3d
645 (2nd
Circ. 2004).
93
AXEL H. BAUM, “Anti-suit Injunctions Issued by National Court To Permit Arbitration
Proceedings”, in EMMANUEL GAILLARD, Anti-Suit Injunctions in International Arbitration, IAI
Series on International Arbitration No. 2, (E. Gaillard ed. 2005).
94
General Electric Company v. Deutz AG, United States Court of Appeals, Third Circuit,
October 31, 2001.

46
jurisdiction; and secondly, the arbitration commenced by Deutz
constituted a violation of US public policies.95
Finally, under the umbrella of the term “anti-suit” are also set orders
named anti-anti suit injunctions. These injunctions occur when an anti-suit
injunction issued by a Court is followed by another specular anti-suit
injunctions; in such situation the latter aims to enjoin the same behaviour
forbidden by the former or to forbid the same behaviour enjoined by the
former.96
A anti-anti suit injunction has been issued in the Pertamina
case97
. Pertamina was a company wholly-owned by the Government of
Indonesia. In this case, Pertamina concluded two contracts with KBC
regarding the development of a geothermal project in Indonesia. After the
suspension of the project ordered by two presidential decrees because of
the Asian economical crises, an arbitration was started in Switzerland
pursuant an arbitration agreement contained in the contracts. The arbitral
tribunal settled in Switzerland awarded damages to KBC and, then KBC
started court proceedings in US in order to enforce the award. In
response, Pertamina tried to annul the award by filing an application
before the court of Jakarta in March 2002. The court of Jakarta granted an
anti-suit injunction to prevent the enforcement of the award in the US.
The US District Court for the Southern District of Texas reacted issuing an
order aimed to enjoin Pertamina from enforcing the anti-suit injunction
granted by the Indonesian court. Such order represents an example of
anti-anti suit injunction. However, after the filing of an appeal against the
order issued by the US court, the US Court of Appeal for the 5th
Circuit
reversed the District Court and annulled the anti-anti suit injunction.
95
ALBERT JAN VAN DEN BERG, “Control of Jurisdiction by Injunctions Issued by National
Courts”, in International Arbitration 2006: Back to Basics?, ICCA Congress Series, 2006
Montreal Volume 13, (Kluwer Law International, 2007), 192.
96
MASSIMO V. BENEDETTELLI, Le anti-suit injunctions nell’arbitrato internazionale: questioni
di legittimità e opportunità, (2014) 4 Rivista dell’Arbitrato.
97
Karaha Bodas Co LLC (KBC) v Perusahaan Pertam- bangan Minyak Dan Gas Bumi
Negara (Pertamina), 190 F Supp 2d 936 (SD Tex 2001)

47
Summing up, the anti-suit injunctions are frequently used in the field of
international arbitration with different purposes, sometimes even contrary
to each other.
Moreover, the expression “anti-suit” is misleading because anti-suit
injunctions are addressed to the parties and not to a foreign court or an
arbitral panel.98
As stated by Lord Hobhouse in Turner v. Grovit99
:
“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.”
Nevertheless, in nearly every case commentators and case law agree on
the fact that granting an anti-suit injunction determines the unavoidable
consequence to indirectly interfere with national courts’ jurisdiction.100
It is necessary to point out that State courts allowing the issue of anti-suit
injunctions (as it will be outlined further, this type of orders is commonly
used in common law systems – especially US and UK – and partially or
even completely rejected by the civil law systems) need to control the
enforcement of the issued injunctions.101
A breach of an anti-suit order
entails a sanction whose nature could be administrative or criminal, more
98
99
Turner v. Grovit, [2001] UKHL 65, para. 23.
100
S. CLAVEL, Anti-suit injunctions et Arbitrage, Rev. Arb. (2001), 687-688; See also as
example of case law Airbus Industries v Patel, 2 All. E.R. 257, (1998)
101
ALEXANDER J. BELOHLAVEK, Arbitration, Ordre Public and Criminal Law, Vol. 2, (Kiew,
Taxon, 2009), para. 397.

48
than civil (satisfaction).102
Particularly, in the common law system, from
the breach of an anti-suit injunction could derive a “contempt of court”
declaration, a crime punished with financial penalties or even the
imprisonment. Such sanctions are effective when the court has the power
to implement them. However, as it will be further analysed, part of the
commentators considers that the only court appointed with the power to
enforce such orders is the issuing court.103
This assumption is certainly too
much simplistic, and if it were all so simple, relatively few problems would
have arisen in relation to anti-suit injunctions.
A lot of questions spring up dealing with the matter of anti-suit orders,
with regard to the cases in which an anti-suit injunction has to be granted,
to their use in different judicial systems like common law and civil law an
to the doubts concerning their compliance with different principles and
regulations. In order to better afford such questions an overview on the
development of such orders during time and through different law
systems is useful.
2.2 History and development of principles
Anti-suit injunctions do not find their origin in the development of
international trade in the eighteen or nineteen century (even though in
such age they started to be used in the field of international arbitration),
but their origin is more distant in time. Anti-suit injunctions date back to
the sixteen-century and their origin has been defined by professor M.
Benedettelli as “noble”, underlining that they had represented a sort of
secularity’s symbol of the State.104
Indeed, anti-suit injunctions hail from
the jurisdiction of the Court of Chancery and they were granted by
102
MASSIMO V. BENEDETTELLI, supra note 96, 701.
103
DAVID JOSEPH QC, Jurisdiction and arbitration agreements and their enforcement,
(2010, 2nd Ed., Thomson Reuters), para. 15.69.
104
MASSIMO V. BENEDETTELLI, supra note 96, 703-704.

49
common law courts in order to limit the jurisdiction of the ecclesiastical
courts. 105
Precisely, in the 16th
Century, the jurisdiction of the
ecclesiastical courts started to be perceived overextended and common
law courts attempted to put some limits to this judicial interference.106
Subsequently, the Court of Chancery started to extend the use of
injunctions – in the form of the so-called common injunctions – to restrain
parties from starting or continuing proceedings in common law courts.107
Anti-suit injunctions were granted for various reasons. As a matter of
example, anti-suit orders were granted - both before and after a judgment
had been obtained - when the action had been brought before the wrong
court108
or when the action had given rise to oppression. They were also
granted to prevent repeated actions of law109
or to avoid the enforcement
of a judgment obtained with improper or oppressive means. The latter
situation has been greatly illustrated by Lord Ellesmere in The Earl of
Oxford’s Case, where he stated:
“That when a judgment is obtained by oppression, wrong
and hard conscience, the Chancellor will frustrate it and
set it aside, not for any error in the judgment but for the
hard conscience of the party.”110
In the early seventeen-century a direct conflict between the Court of
Chancery and the common law courts arose, due to the increasing number
of issuing injunctions. Such a conflict ended thanks to the intervention of
King James I, whose order declared the legality of these injunctions within
the English legal system. Particularly, James I appointed a commission
105
DAVID JOSEPH Q.C., supra note 103, para. 12.08; see also OLIVER LUC MOSIMANN, supra
note 98, 9.
106
OLIVER LUC MOSIMANN, supra note 98
107
Ibid.
108
Knight v Newnham (1558) Choyce Cases 111, 21 Eng. Rep. 69. In matters like duress
both common law and courts of equity had concurrent jurisdiction.
109
Denis v Carew (1618-1619) Tothill 63, 21 Eng. Rep. 124.
110
The Earl of Oxford’s Case (1615) 1 Ch Rep. 1, 9, 21, Eng. Rep. 485,487.

50
headed by Sir Francis Bacon with the scope to advise him on the legality
of the anti-suit injunctions issued by the Court of Chancery. Following the
work carried out, the commission stated that anti-suit orders were to be
considered lawful within the English legal framework.111
In the 19th
century, the English courts started to geographically extend the
use of anti-suit injunctions, firstly restraining parties from bringing
lawsuits not only in other English courts but also in the rest of the United
Kingdom, and secondly looking also to courts outside the United
Kingdom.112
Initially such injunctions were issued without any particular reasoned
judgment; indeed, the main criterion followed by the courts for the issuing
of injunctions was the in personam jurisdiction of the English courts over
the party to be restrained.113
Later on (in the late 19th
century) the
principles applicable to anti-suit injunctions were developed. In particular,
as stated by Lord Justice Robert Goff in Bank of Tokyo v Karoon114
with
regard to the development of restraining orders in the late 19th
century,
the mere existence of a parallel proceedings did not justify the
interference and was not to be considered prima facie vexatious. More
precisely the applicant needed to show the vexation related to such
proceedings.115
Such principle finds a clear explanation in McHenry v
Lewis116
, where Lord Justice Bowen said:
“I would much rather rest on the general principle that
the Court can and will interfere whenever there is a
vexation and oppression to prevent the administration of
111
OLIVER LUC MOSIMANN, supra note 98.
112
See Bushby v Munday, (1821), 5 Madd. 297; Carron Iron Co v Maclaren, (1855) 5 HL
Cas. 416.
113
See Lord Portalington v Soulby, (1834), 3 My & K, 103; see Dicey, Morris and Collins,
The Conflict of Laws, (Sweet & Maxwell, 2006), para. 12-067.
114
Bank of Tokyo v Karoon, [1986] 3 All ER 468.
115
See also Moore v Moore, (1896), 12 T.L.R., 221; Hyman v Helm, (1883), 24 Ch.D.,
531.
116
McHenry v Lewis, (1882), 22 Ch. D. 397, 407-408.

51
justice being perverted for an unjust end. I would rather
do that than attempt to define what vexation and
oppression mean; they must vary with the circumstances
of each case.”
Until the early 20th
century cases involving the breach of an arbitration
agreement did not occur. Indeed, it is necessary to wait until the 1911,
when the Court of Appeal granted an injunction aimed at restraining a
foreign proceedings in breach of an arbitration agreement.117
This case
was Pena Copper Mines Ltd v Rio Tinto Zinc Co Ltd118
and it is considered
particularly important since it established that “ it is beyond all doubt that
court has jurisdiction to restrain the [defendant] from commencing or
continuing proceedings in a foreign court if those proceedings are in
breach of contract.”119
It is not contested that the arbitration agreement is a sort of contract
concluded between two or more parties by which they decide to refer their
dispute to a private jurisdiction, and, for such reason, the reference to the
term “contract” can be extensively interpreted including arbitration
agreement.
However, the vexation and oppressive requirement established in the late
19th
century became soon too strict, particularly in relation to a variety of
cases occur the late 1970’s and early 1980’s. Therefore, such
requirements were relaxed, and then substituted by the Scottish doctrine
of the Forum Non Conveniens.120
Meanwhile, the recourse to anti-suit injunctions by state courts grown up
in parallel in the United States.121
However, the requirements demanded
were not the same requested by UK courts.
117
DAVID JOSEPH QC, supra note 103, para. 12.15.
118
Pena Copper Mines Ltd v Rio Tinto Zinc Co Ltd, (1911), 105 L.T., 846.
119
Ibid. at 850-851.
120
Spiliada Maritime Corp. v Consulex Ltd., (1987), A. C. 58 (HL).
121
JONATHAN R. C. ARKINS, Borderline Legal: Anti-Suit Injunctions in Common Law
Jurisdictions, (2001), 18(6) Journal of International Arbitration, 604.

52
2.3 Anti-suit Injunctions in Common Law and Civil Law: a
Comparative Prospective
As already said above, anti-suit injunctions are judicial devices, which find
their origin in the common law systems, especially in England. In
particular, they are strictly connected with the Scottish forum non
conveniens doctrine and they represent the counterpart of such
theory.122
The theory allows common law courts to deny their jurisdiction
in favour of a court considered more convenient and the more
convenience of a forum is established on the basis of private and public
interests.123
As a consequence, an order aimed at denying jurisdiction for
forum non conveniens concentrates the dispute in a single forum. This is
what exactly occurs issuing an anti-suit injunction. However, the two
cases above-mentioned are deeply different between them. In the first
situation, the order issued does not affect a foreign jurisdiction and is
strictly limited to domestic jurisdiction; on the contrary, granting an anti-
suit injunction a court states that it considers itself the proper forum to
set the dispute.124
For this reason, the anti-suit injunctions could be
defined as a negative effect of forum non conveniens.
Nonetheless, in the view of the English and American courts, anti-suit
injunctions are not intended to cast doubts on the jurisdiction of a foreign
court (the injunctions are not directed to the foreign court since they have
a in personam nature). Such idea is not accepted by civil law systems in
general. The different approaches of common law and civil law on this
matter may be clarified analysing two features.
122
MASSIMO V. BENEDETTELLI supra note 96, 704. See also Institut de Droit International,
Resolution of 9th
Sept., 2013, on The Principle for Determing When the Use of the
Doctrine of Forum Non Conveniens and Anti-suit Injunctions is Appropriate.
123
MARCO STACHER, You Don’t Want to Go There – Antisuit Injunctions in International
Commercial Arbitration, (2005), 23(4) ASA Bulletin, 643.
124
Ibid.

53
Firstly, such systems are based on different principles when they deal with
parallel proceedings.125
Common law systems – as said above - are based
on forum non conveniens and, in particular, anti-suit orders are strictly
linked with such principle, since they constitute a negative effect of the
doctrine. Differently, civil law systems apply the lis alibi pendens and the
Competence-Competence. According to the Competence-Competence
principle, the arbitral tribunal has the power to decide on its own
jurisdiction. 126
Indeed, there is no need to wait for a State court
determination of the matter.127
This principle is often considered the
cornerstone of international arbitration, and it serve to maximize the
recourse to arbitration proceedings as efficient tools for the resolution of
disputes, and to minimize the consequences of delay tactics. 128
Two
different effects hail from this principle: a positive effect and a negative
one. According with the former, challenges to the existence of the
arbitration agreement do not remove the arbitrators’ power to decide on
its own jurisdiction; differently, according with the negative effect, State
courts have merely the possibility to operate a prima facie review of the
arbitration agreement before the issuing of the award.129
Nowadays, the
Competence-Competence doctrine has become an internationally
recognised standard and its application depends on the different
jurisdiction’s approach towards the relationship between national courts
and arbitral tribunals.130
Even looking at the different application of this
125
JULIAN D. M. LEW QC, Does National Court Involvement Undermine the International
Arbitration Process?, (2009) 24(3) American University International Law Review, 500.
126
EMMANUEL GAILLARD, YIVES BANIFATEMI, “Negative Effect of Competene-Competence: The
Rule of Priority in Favour of Arbitrators”, in Enforcement of Arbitration Agreements and
International Arbitral Awards: The New York Convention in Practice, (Emmanuel Gaillard
& Domenico Di Pietro eds., 2008), 257.
127
STEFAN MICHAEL KRÖLL, LOUKAS A. MISTELIS, International Arbitration and International
Commercial Law: Synergy, Convergence and Evolution, (Kluwer Law International,
2011), 157.
128
Ibid.
129
OLIVER LUC MOSIMANN, supra note 98, 52.
130
NADJA ERK, Parallel Proceedings in International Arbitration: a Comparative European
Perspective, (Kluwer Law International, 2014), 24.

54
principle the distance between common law and civil law systems is easily
perceptible.
Differently, the lis alibi pendens theory deals with a situation in which the
same parties, the same issue and also the same legal grounds are
pending before two different courts at the same time, and determines the
exclusion of a court jurisdiction in favour of the court first seized.131
However, today a transnational principle applicable does not exist, since,
as many commentators affirm, arbitration and court proceedings are
governed by different jurisdictions and conventions.132
These different principles characterising common law and civil law
systems led to a different approach in the acceptance of anti-suit
injunctions. More precisely, common law systems generally accept the
possibility for a court to intervene within the international arbitration
context supporting or restraining arbitral proceedings. Differently, such
behaviour is not commonly accepted by civil law systems.
Secondly, even though anti-suit injunctions are orders directed to a party
which has broken its duty to contract in a selected forum (due to an
arbitration agreement or a judicial agreement), they probably interfere
with the judicial sphere of other countries 133
. Indeed, the indirect
interference caused by anti-suit orders into foreign jurisdictions is anyway
accepted by various commentators134
and sustained by case law135
. In
particular, granting an anti-suit injunction would show a general mistrust
with regard to foreign courts and to their good faith. However, English
courts and American courts stay by its view and they have no doubts they
131
Ibid., 107.
132
Ibid.
133
International Arbitration No. 2, (Juris Publishing, 2005), 30.
134
S .CLAVEL, Anti-suit injunctions et Arbitrage, Rev. Arb. (2001), 687-688; see also
MASSIMO V. BENEDETTELLI, Le anti-suit injunctions nell’arbitrato internazionale: questioni di
legittimità e opportunità, (2014).4 Rivista dell’Arbitrato
135
Welex A.G. v. Rosa Maritime Ltd. (the “Epsilon Rosa”), [2003] 2 Lloyd’s Rep. 509,
[2003] All E.R. (D) 71 (July); see also Airbus Industries GIE v. Patel, [1998] 2 All. E.R.
257.

55
are entitled to issue anti-suit injunctions in order to protect their own
jurisdiction against a foreign no-competent forum.136
English courts have long exercised the power to join a party from starting
or continuing a foreign litigation brought in violation of an arbitration
agreement137
and they generally accepted that anti-suit injunctions may
ordinarily be granted. The position taken by English courts and the
recognition of the power to grant anti-suit orders has been well sketched
out in the case of Aggeliki Charis Compania Maritima v Pagnan (The
Angelic Grace). The case was about the grant of an anti-suit injunction in
order to prevent a party to an arbitration setting in England from
proceeding with a lawsuit before an Italian court. In particular, Lord Millet
stated that:
In my judgement, the time has come to lay aside the
ritual incantation that this is a jurisdiction which should
only be exercised sparingly and with great caution. There
have been many statements of great authority warning of
the danger of giving an appearance of undue interference
with the proceedings of a foreign Court. Such sensitivity
to the feelings of a foreign Court has much to commend it
where the injunction is sought on the ground of forum
non conveniens or on the general ground that the foreign
proceedings are vexatious or oppressive but where no
breach of contract is involved. In the former case, great
care may be needed to avoid casting doubt on the
fairness or adequacy of the procedures of the foreign
Court. In the latter case, the question whether
proceedings are vexatious or oppressive is primarily a
matter for the Court before which they are pending.
136
ALEXANDER J. BELOHLAVEK, supra note 101.
137
GARY B. BORN, supra note 11, 1290.

56
But in my judgement there is no good reason for
diffidence in granting an injunction to restrain foreign
proceedings on the clear and simple ground that the
defendant has promised not to bring them.138
A different point of view characterises civil law systems. Particularly,
continental legal systems are based on the premise that “the judicial
power is subject to the public law area, which becomes a guarantor of
complying with legal policy in private law relations”139
. Such premise has
its origin in the clear distinction between private law and public law
domains. Differently, common law is not based on this premise because of
the lack of the above-mentioned distinction.140
Indeed, in the common law
systems, the judicial sector is seen as a service directly granted to private
interests. An example of this structural scheme is the judges’ election (i.e.
in the US).
Starting from this premises, the common law systems look to the anti-
suit-injunctions as a “special kind of service”141
designed to protect a
private interest against an abuse of right. Such abuse would derive from
the wrong behaviour of a private law entity, which decides to issue a
lawsuit before another court, causing a situation of vexation or oppression
for the other party. This view is followed by US courts as well, and their
position is clearly set out in the case of BHP Petroleum (Americas) Inc et
al v. Walter F Baer Reinhold.142
In this case, BHP Petroleum solicited the
US District Court of the Southern District of Texas to issue an injunction in
order to enjoin Baer from continuing a judicial process in Ecuador started
in breach of an arbitration agreement. In particular, the court held
138
Lord Millet in the The Angelic Grace, [1995], 1 Lloyd’s Rep. 87.
139
ALEXANDER J. BELOHLAVEK supra note 101
140
Ibid.
141
Ibid.
142
ALBER JAN VAN DEN BERG, supra note 95, 202.

57
that an injunction barring a foreign action was proper if
the simultaneous prosecution of an action would result in
‘inequitable hardship’ and ‘tend to frustrate and delay the
speedy and efficient determination of the cause’. […] The
focus of the inquiry is whether there exists a need to
prevent vexatious or oppressive litigation. In light of the
strong federal policy favouring arbitration, the court finds
that plaintiffs would be irreparably harmed if Baer were
permitted to continue litigation in Ecuador while the same
claims were being arbitrated. Therefore, the court grants
plaintiffs’ application for injunction.143
On the contrary, from a civil law perspective, anti-suit injunctions are
considered means aimed at disrupting foreign judicial systems. Under the
civil law view, anti-suit orders are considered tools by which a judge
pretends to impose its own judgment or decision or even evaluation to
another foreign judge.144
In fact, such injunctions do not find application
in most Continental European countries and their effects are in general
refused. Moreover, in most circumstances, civil law courts are not even
requested to issue anti-suit orders, since the unavailability of such reliefs
within civil law systems is clearly manifest.145
In general, civil law courts
have lot of reservations about anti-suit injunctions because such reliefs
are considered not compliant with the principles followed by such courts.
One of the European countries more reluctant in accepting anti-suit
injunctions is Germany. Particularly, in the Case 3VA 11/95146
, a German
143
BHP Petroleum (Americas) Inc et al v. Walter F Baer Reinhold, US District Court,
Southern District of Texas, Houston Division, April 28, 1997, Yearbook Commercial
Arbitration 1998, 945.
144
ANDREA ATTERITANO, Anti-suit injunctions in ambito arbitrale: provvedimenti illeciti o
semplicemente odiosi?, (2010) 3 Rivista dell’arbitrato, 459.
145
GARY B. BORN supra note 11, 1296.
146
Re the Enforcement of An English Anti-Suit Injunction Case 3VA 11/95
Oberlandesgericht (Regional Court of Appeal) Düsseldorf 10 January 1996, [1997] ILPr
320

58
court has established that anti-suit injunctions constitute an infringement
of German courts’ jurisdiction and German public policy147
. The case
concerned a contractual dispute in the context of which the English High
Court issued an injunction prohibiting a German resident from starting or
continuing proceedings against the claimant in a forum different from the
one contractually agreed (the London Court of International Arbitration).
Indeed, shortly after the granting of the English injunction, the claimant
requested to effect service of the English process in Germany. The
German Legal Authority refused to follow the request and the claimant
applied for an order aimed at compelling the German Legal Authority to
apply the request for service. The Regional Court of Appeal of Dusseldorf
rejected the appeal, observing that:
Such injunctions constitute an infringement of the
jurisdiction of Germany because the German courts alone
decide, in accordance with the procedural laws governing
them and in accordance with existing international
agreements, whether they are competent to adjudicate on
a matter or whether they must respect the jurisdiction of
another domestic or a foreign court (including arbitration
courts). […] These rights are safeguard by the Germany
procedural codes and, in many respects, by the [German
Constitution]. The courts must give effects to these
rights. Instructions from foreign courts to the parties
concerning the manner in which the proceedings are to be
conducted and their subject-matter are likely to impede
the German courts in fulfilling this task.148
147
KYRIAKI NOUSSIA, Antisuit Injunctions and Arbitration Proceedings: What Does the
Future Hold?, 26 Journal of International Arbitration, Issue 3, (2009), 322.
148
Case 3VA 11/95, Oberlandesgericht, Dusseldorf, January 10, 1996.

59
Under the perspective of the German judges, anti-suit injunctions
represent a clear interference with the courts exercise of the jurisdiction,
which is traditionally controlled by the public law domain. This is, as
already said above, the view of the most civil courts, and such position
has been upheld by the ECJ in the leading case of Turner v. Grovit.149
In
this case, referred by the House of Lords to the European Court of Justice,
the ECJ established the non-enforceability of anti-suit injunctions in the
context of the European Union regulation, stating that:
Any injunctions prohibiting a claimant from bringing such
an injunction must be seen as constituting interference
with the jurisdiction of the foreign court which, as such, is
incompatible with the system of the [Brussels]
Convention.150
Notwithstanding the general refusal shown by civil law countries in
granting anti suit-suit injunctions, some civil law courts (generally
countries outside the EU, like Brazil, and Indonesia) started to issue anti-
arbitration injunctions in the last years.151
This could lead to a gradual
acceptance of anti-suit orders but, actually, neither anti-suit injunctions
nor anti-arbitration injunctions find a clear regulation and recognised legal
bases in civil law systems. For example, Swiss judges consider anti-
arbitration injunctions incompatible with Swiss legal system. Indeed, in
the case Air (PTY) Ltd. V. International Air Transport Ass’n, the Geneva
Court of First Instance established the incompatibility of anti-suit
149
GARY B. BORN, International Commercial Arbitration, (Kluwer Law International, 2014),
1297.
150
See Turner v. Grovit, [2001] UKHL 65.
151
For the indonesian approach to anti-arbitration injunctions see HAKEEM SERIKI,
Injunctive Relief and International Arbitration, (Routledge 2014), 132, para. 7.71 dealing
with the Himpurna case. Himpurna California Energy v Indonesia (2000) Yearbook on
Commercial Arbitration Volume XXV, 109. For an example of anti-arbitration injunction
issued by a Brazilian court see Companhia Paranaense de Energia – COPEL v. UEG
Araucária Ltda, Case No. 24.334/2003, 3rd State Court of Curitiba.

60
injunctions and especially of anti-arbitration injunctions under the Swiss
law, because such orders seem to contradict the principle of competence-
competence.152
According to the court:
[A]s a matter of Swiss law there is no such things as a
“judicial tutelage” of the courts over arbitrators; quite to
the contrary, Swiss law fully implements the principle of
“Kompetenz-Kompetenz” both in it positive effects […]
and its negative effects […] The Jurisdiction of a court to
determine whether and arbitration agreement is valid –
which cannot in any event lead to an anti-suit injunction –
exists only when the arbitration agreement is relied upon
as a defence before the court.153
In conclusion, anti-suit injunctions remain even today a legal tool widely
accepted by the common law world only, with scarce (or even any)
possibilities to achieve recognition in civil law systems, especially within
the European context and after the West Tankers decision rendered by the
Court of Justice of the European Union, as the research will try to explain
in the next chapters.
152
JULIAN D. M. LEW QC, supra note 125, 507.
153
See Tribunal de Première Instance [TPI] [Court of First Instance], May 2, 2005, Case
No. C/1043/2005-15SP (Switz), translated in 23 ASA BULL. 739, 739, (2005).

61
3 ANTI-SUIT INJUNCTIONS ISSUED BY STATE COURTS
3.1 Background
Anti-suit injunctions may be issued in the field of international arbitration
for various reasons, they may be sought at different stages of the arbitral
proceedings and they may have different goals.154
They could be aimed at
disrupting (i) a foreign court lawsuit started in breach of an arbitration
agreement; (ii) an arbitration which has commenced even if an arbitration
agreement had not been concluded; (iii) a proceedings aimed at setting
aside an arbitral award or (iv) the enforcement of an arbitral award.155
Thus, anti-suit injunctions issued by state courts are mostly devised for
the purpose of giving certainty to an arbitration agreement or a final
award.
Court-ordered anti-suit injunctions vary consistently from country to
country and, as already said above in Chapter 2, they are more frequently
issued in common law than in civil law jurisdictions. Each country has the
task to arrange the civil procedure rules allowing or not allowing the
issuance of anti-suit orders, the conditions under which anti-suit
injunctions may be issued, the judicial discretion and the effects
connected to them.156
Hence, the competence for the granting of anti-suit
injunctions will depend on the jurisdiction criteria applied within the states
and on the restrictive or extensive impact that the existence of an
arbitration agreement could have with regard to the limits to state’ s
jurisdiction. 157
In my dissertation, I perused the legal basis and
prerequisites for the grant of anti-suit injunctions in U.K. and U.S as the
154
NADJIA ERK, Parallel Proceedings in International Arbitration: a Comparative European
Perspective, (Kluwer Law International, 2014), 119.
155
MARCO STACHER , supra note 123, 644.
156
GUIDO CARDUCCI, Validity of Arbitration Agreements, Court Referral to Arbitration and
FAA § 206, Comity, Anti-Suit Injunctions Worldwide and their Effects in the E.U. Before
and after the New E.U. Regulation 1215/2012., (2013) 24(3) The American Review of
International Arbitration.
157
MASSIMO V. BENEDETTELLI, Le anti-suit injunctions nell’arbitrato internazionale: questioni
di legittimità e opportunità, (2014) 4 Rivista dell’Arbitrato, 726.

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