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This article is written by Harsh Raj. This article deals with the anti-suit injunction, examining judicial pronouncements on the subject in both India and different countries. The article further deals with the scenario in which an anti-suit injunction can be granted, when it can be refused to be granted, and the difference between an anti-suit injunction and anti-anti-suit injunction, among other things.

This article has been published by Sneha Mahawar.

Introduction

The interdependence of countries after globalisation has increased. Its level could have been seen during the COVID-19 pandemic. It has also led to the rapid growth of trade and business among the countries. The increasing level of inter-country trade led to a high number of transactions, along with international disputes. As a result of the rising international disputes, the need for their redress within a limited time frame arose. The redressal body has to keep in mind the laws of the different parties or nations while addressing the disputes.

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While dealing with international commercial disputes, arbitration played a pivotal role, along with litigation. Consequently, it is a regular practice in the international disputes to disrupt the proceedings by bringing the disputes before the national courts to seek an “anti-suit injunction.” In this article, the author has discussed anti-suit injunction in detail. 

What is an anti-suit injunction

The origin of the anti-suit injunction can be traced to England, where it evolved from a mechanism intended to restrain proceedings in another domestic court. The anti-suit injunction is the result of the jurisdictional contretemps among the admiralty courts, common law courts, and ecclesiastical courts. The common law courts of litigation before the ecclesiastical and common law courts.

An anti-suit injunction is an order issued by a court to bar a party from proceeding with any step in another jurisdiction. It is used to prevent the party from commencing any action in another forum or to force that party to discontinue such action if it has already commenced. The order of the anti-suit injunction is primarily used in common-law countries. According to the pronouncement of the case of Modi Entertainment Network v. WSG Cricket Pt. Ltd.(2003), it is a situation when a court restrains a party to a suit before it from prosecuting a case in another court that includes a foreign court as well. In other words, anti-suit injunctions prohibit a party from continuing a case in another jurisdiction.

When an anti-injunction is granted

It became important for the courts to order anti-suit injunctions to prevent any irreparable miscarriage of justice. In various pronouncements, the court has held different situations under which an anti-suit injunction is granted. In the case of Modi Entertainment Network v. WSG Cricket Pt. Ltd.(2003), the Supreme Court has established the grounds on which an anti-suit injunction can be granted. The court has held that while granting the anti-suit injunction, the following aspects need to be satisfied:

  • If the injunction is declined, the justice will be denied. That means, where granting anti-suit injunction become mandatory to meet ends of justice, in such a situation anti-suit injunction is granted by the court.
  • The principle of comity must be kept in mind. In simpler words, it means respecting the jurisdiction of the court where the proceeding is going on.
  • The interpretation of the contract and the circumstances of the facts must be kept in mind while granting the injunction.
  • The court shall examine the convenience of the party and can grant an anti-suit injunction against oppressive or vexatious proceedings that is not convenient for the parties, in situations where more than one forum is available. The court will consider which forum is appropriate while exercising its discretion to grant an anti-suit injunction.
  • The exclusive and non-exclusive jurisdiction is a very relevant factor that is related to the jurisdictional clause of the contract. Where parties have agreed to approach a neutral foreign forum for the resolution of their disputes arising under the contract under a non-exclusive jurisdiction clause, in such case no anti-suit injunction is granted, as parties consider convenience and other factors before submitting to the chosen court.
  • The anti-suit injunction shall not be granted, where concerned parties, under a non-exclusive jurisdiction clause, consent to approach a neutral foreign forum and be governed under its laws to resolve their disputes related to the contract.

Further, it was held by the Supreme Court, in the case of Dinesh Singh Thakur v. Sonal Thakur, (2018), that the court could not grant the suit of anti-suit injunction a continuing proceedings are not unfair. The anti suit injunction could be granted if the continuing proceedings are unfair and serve injustice to any party by the Supreme Court.

Important consideration while granting anti suit injunction

Anti suit injunctions are generally granted to prevent breach of contract. Before granting anti suit injunctions, the following consideration must be established- 

  • Jurisdiction of the court in relation to the party against whom this injunction is granted;
  • Validity of the agreement pursuant to which this anti suit injection is applied for; and
  • Due consideration would be given to intention of parties in formulation of the agreement. 

It should be noted that if the case, for which anti suit injunction application is filed, has reached to a stage from where it will not be appropriate for the court to grant the injunction, in such case the application for anti suit injunction would get dismissed. 

When is an anti-suit injunction refused

The court needs to grant an anti-suit injunction so that justice is preserved. In the same manner, it is also important for the court to investigate the circumstances of every case before granting an anti-suit injunction. It has to be ascertained by the court that by granting anti suit injunction, it is not causing any injustice. If the court is not satisfied, it also has the power to refuse the granting of an anti-suit injunction. The Supreme Court of India, in the case of Modi Entertainment Network and Anr v. WSG Cricket Pte Ltd., has propounded that the anti-suit injunction will not be granted against the defendant where the parties have agreed for the exclusive jurisdiction of a court that includes a foreign court, i.e., a forum of choice regarding the continuance of proceedings. Additionally, the Supreme Court in the case of Dinesh Singh Thakur v. Sonal Thakur has also opined that the anti-suit injunction should be granted sparingly, and the courts should be extra-cautious before passing such orders.

What is an anti-anti-suit injunction

The Anti-anti-suit injunction is an order where the party was barred to proceed with the application of anti-suit injunction that is filed before any foreign court to injunct the “local proceeding by the court. The anti-suit injunction was examined in India for the first time by the High Court of Calcutta in the case of Devi Resources Ltd. v. Ambo Exports Ltd., where the court stated that the general equitable jurisdiction of granting an injunction includes the authority to grant anti-suit, anti-arbitration, or anti-anti-suit injunctions. But such an injunction can be issued in the most extreme situation, where the refusal will endorse the gross injustice.

Further, it was the case of Interdigital Technology Corp. v. Xiaomi Corp. (2021), where the anti-suit injunction was passed for the first time. The High Court of Delhi held that the grounds for granting an anti-suit injunction would be the same as those for an anti-suit injunction. In addition to that, the court has acknowledged its jurisdiction over the defendants and proceeded forward in granting a global injunction in favor of the plaintiff.

Difference between anti-injunction and anti-anti-injunction

The Delhi high court in its judgement of the Interdigital Technology Corp. v. Xiaomi Corp. has explained the meaning of the anti-suit injunction and anti-anti-suit injunction as follows-

  • Anti-suit injunction: It is an order where the court stops the party from proceeding with the main suit that is pending before the foreign courts.
  • Anti-anti-suit injunction: It is an order where the courts stop the party from proceeding with the application of anti-suit injunction that is filed before the foreign court to injunct the “local proceedings”. 

Views of Indian judiciary on anti-suit injunctions 

Oil and Natural Gas commission v. Western Commission of North America (1987)

Facts of the Case

In this case, the Indian company ONGC entered into an agreement of drilling with the (US company) i.e, the Western companies of North America and signed the paper that states the arbitration of the dispute will be held in London, but as per the provisions of the domestic arbitration statute of India. The dispute arose, and the judgement was given in favour of the US company in October 1985. After that, a suit was filed in the US district court to get confirmation of the award and to obtain favour against the Indian company, ONGC. In retaliation, ONGC filed a petition before the Bombay High Court to overturn the award and matter, prohibiting the US company from proceeding with its suit in the US court.

The High Court of Bombay has held that the US company was entitled to bring suit in US court to enforce the award as a foreign award, and the Court has further opined that the injunction was not suitable as the pending petition or application in the high court and did not affect the right of award. ONGC challenged the judgement in the Supreme Court of India.  

Issues

  • The issue in this case was “whether the High Court of Bombay’s judgement and reasoning in granting the restraint order” was justified.

Judgement

The Apex Court has overturned the judgement of the Bombay High Court. The court has opined that the award did not bind parties unless confirmed by the Indian High Courts according to the domestic arbitration law of India. So, the award was not enforceable in the US as it didn’t bind the parties. Further, as per Article V (1)(e) of the New York convention, which allows the national courts to refuse the recognition of an award if the party opposing recognition establishes that the award has not yet become binding on the parties or has been suspended,  the injunction was appropriate. It is also the first pronouncement on the anti-suit injunction, and is a very important judgement from the point of view of identification of situations in which the continuance of the proceeding in the foreign court can be oppressive. Further, the Supreme Court has held that the anti-suit injunction would be granted if:

  • It was important to do so.
  • There is an end to justice.
  • The action of a foreign court is oppressive.
  • The High Court has undoubted jurisdiction to grant an injunction.

British India Navigation Co. Ltd. v. Shanmughavilas Cashew Industries (1990)

Facts of the case

In this case, Shanmaughavilas Cashew Industries (the respondent) purchased 350 tons of raw cashew nuts from East Africa. These goods were transported via the vessel named “SS Steliosm,” chartered by the British India Steam Navigation Co., Ltd., (the appellant), an incorporated entity based in England. The contract of affreightment (a contract hiring a ship to carry goods) was entered and contained three bills of lading issued to the shipper for the three loads of raw nuts. But only 3712 bags out of 4445 bags were delivered to Cochin. The first respondent, i.e, cashew industries, sued the Navigation Co. before the court of the Subordinate Judge, Cochin, to seek damages for the delay in delivery.

Issues

  • Whether the court of the Subordinate Judge of Cochin has jurisdiction or only the English Court has jurisdiction?
  • Who will be liable, “the chartered” or “the owner,” as per clause 3 of the agreement?

Judgement

The court of the Subordinate Judge, Cochin, held in favour of the respondent, and after that, the High Court of Kerala also held the judgement in favour of the respondent. Then, the same was appealed in the Supreme Court. The appeal was successful in the Supreme Court, and the apex court has set aside the impugned judgement and remanded the case to the Subordinate court. Further, in this case, the Supreme Court has determined the rule of the jurisdiction of the court. The court has determined that in the absence of a clear designation of the proper law for the country, the law of the chosen court will be considered the applicable law. This applies when the claims made align with the terms and conditions related to the subject matter.

Modi Entertainment Network v. WSG Cricket Pte.(2003)

Facts of the case

In this case, the respondent, WSG Cricket, had the sole right to telecast and sell the events of the ICC tournament in Kenya. The other party entered into an agreement by which the sole licence was granted to the other party, i.e., Modi Entertainment Network, to telecast the event on Doordarshan. After the launch of the telecast, the respondent, WSG Cricket, alleged a breach of the agreement by the appellant and threatened to continue the telecast given to Doordarshan. After the round of allegations, the appellant (Modi Entertainment Network) filed a suit in the Bombay High Court, and they alleged that they suffered a huge loss of revenue as advertisers had pulled out due to the open threats.

On the other hand, the respondent (WSG Cricket) also filed a suit in English Court. Although the Jurisdiction Clause of the agreement provides that disputes will be resolved as per English law, they have submitted non-exclusive jurisdiction to the English courts.

Issues

  • Whether the bench of the High Court mistakenly vacated the anti-suit injunction granted by a single judge?

Judgement

The Bombay High Court granted the anti-suit injunction suit to the appellant. Therefore, an appeal was made, which was preferred by the apex court. It is the first case where, for the first time, the Supreme Court has discussed and outlined the principles and grounds on which an anti-suit injunction can be granted. The court has further held that Indian courts are of equity and exercise jurisdiction in personam, which means they can issue an anti-suit injunction to a party over whom they have personal jurisdiction. However, the jurisdiction of the personam will be used occasionally because it results in interference in other courts’ jurisdiction. In addition to that, the court has laid down some principles on which the anti-suit injunction order would be given.

In another case, the Supreme Court held that if the continuation of the proceedings resulted in injustice, there would be a defeat of justice, and injustice would be perpetuated. While delivering the judgement in this instance, the court upheld the decision in Modi Entertainment Network v. WSG Cricket Pte. Ltd., and the principle articulated in that case later evolved into established legal precedent.

Dinesh Singh Thakur v. Sonal Thakur (2018)

Facts of Case

In this case, Dinesh Singh Thakur and Sonal Thakur, who married in 1995, had two children. The appellant-husband worked in the USA and brought the respondent-wife on a dependent visa. In 2003, they were granted US citizenship and later “PIO” and “OCI” status. Thereafter, a martial discord arises between Dinesh S. Thakur and Sonal Thakur. Subsequently, the appellant-husband filed a plea for separation under the Hindu Marriage Act, 1955, against the respondent-wife, who then filed a petition for divorce in the Circuit Court of Pinellas County, Florida. The appellant-husband filed a civil suit before the District Judge, Family Court, Gurgaon, under the Hindu Marriage Act, seeking a permanent injunction and to prevent the respondent-wife from pursuing the divorce petition before the Court in the United States. The District Judge granted an interim injunction, which was later vacated. The respondent-wife filed a vacation and modification application, and the appellant-husband filed a High Court petition, which was rejected by the High Court.

Issues

  • Whether the Appellant-husband was entitled to the decree of anti-suit injunction against the Respondent-wife?

Judgement

The Supreme Court while examining the facts and circumstances of the case stated that anti-suit Injunctions are intended to prevent a party to a proceeding from filing or litigating a lawsuit in another court, especially a foreign court. In simpler words, an anti-suit injunction is a judicial order that prevents one party from bringing a case to another court that is not within its jurisdiction. In this case, the court did not grant the anti-suit injunction as the continuing proceedings are not unfair. The suit of the injunction could be granted if the continuing proceedings are unfair and serve an injustice to any party.

Interdigital Technology Corp. v. Xiaomi Corp. (2021)

Facts of Case

In this case, there was a dispute between Interdigital (the plaintiff) and Xiaomi (the defendant) regarding the violation of an Indian patent. Therefore, the plaintiff has filed a suit for a permanent injunction as the defendant has not given consent to use the patent. Earlier, the defendant filed the Standard Essential Patents before the Wuhan Court, which was dismissed on September 23, 2020. In addition to the present suit, the plaintiff has also filed interlocutory applications for interim relief and set up a confidentiality club. The Delhi High Court issued summons in the current suit and interlocutory applications. The defendant filed an anti-suit injunction to restrain the plaintiff before proceeding with the suit.

Issues

  • Whether the court has the jurisdiction to grant the sought relief?
  • If yes, whether the Court should grant the sought Relief?

Judgement

The court has passed an ad-interim injunction in terms of the prayer made by the plaintiff in the present case. The infringement action is the only plausible way for a SEP holder. There would be no deterrent factor left if the proceeding against the defendant was ended to violate the plaintiff’s patent. The Delhi High Court has further explained the different types of injunctions in disputes regarding the appropriate forum. Various types of injunctions include the following:

  • Anti-suit injunction: where the party is restricted by the courts from proceeding with the main suit that is pending before the foreign courts.
  • Anti-anti-suit injunction: It is an injunction where a party is restricted from proceeding with the anti-suit injunction, filed before a foreign court, whose aim is to stop the “local proceedings.”.
  • Anti-enforcement injunction: where one party is barred by the court from enforcing any order passed by a foreign court on the other party.

Views of foreign judiciary

The suit of injunction is primarily used in Common law countries. Its origin can be traced back to England, so it became vital to discuss the viewpoint of the UK judiciary, first.

In the case of Airbus Industries GIE v. Patel, (1998),, the English court has discussed the need to grant an anti-suit injunction. The House of Lords has laid down two principles on which an anti-suit injunction would be granted. The First is to address the need for equity of justice, and the second is to respect the principle of comity in International law. Further, the House of Lords in the case of Carron Iron Co. Proprietors v. Maclaren, (1855), held that the issued injunction should be on the principle of “equity and good conscience”. Later, the courts of the UK in the case of Castanho v. Brown and Root (UK) Ltd., (1980), held that to avoid the perseverance of Injustice, the anti-suit injunction should be provided. And in continuity, the court of privy council in the case of Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak, (1987), has added that if the foreign proceedings are oppressive, the court would grant the injunction.

The judgement of the case CSR Ltd. v. Cigna Insurance Australia Ltd., (1997), laid the principles in Australia to grant the order of anti-suit injunction. The most common principles are the preserv00ation of justice and overcoming oppressive proceedings. 

As far as Canada is concerned, in the case of Workers Compensation Board v. Amchem Products Inc., (1993), the court has opined the two states upon which the anti suit injunction can be issued. The first is to apply the principles of comity, and the second is to analyse the contractual terms of the parties. 

Conclusion

The discovery of anti-injunction is aimed at preserving justice worldwide. The proceeding and the judgement of a particular court of the country may be biased to their local party and oppressive to the other party. In various judgements of the different courts, it has been held that an anti-suit injunction will be granted if the continuance proceeding is oppressive and heading towards the preservation of injustice. In some of the judgments it has also been held that while granting the orders of the anti-suit injunction, the principle of comity must be kept in mind as it came under the jurisdiction of another court. Primarily, anti-suit injunction is prevalent in Common law countries. India is also a Common law country. The Indian courts are the courts of equity that gave the power to issue anti-suit injunctions to preserve justice and prevent injustice.

Frequently Asked Questions (FAQs)

What is the name of the first case where the principles of anti-injunction were discussed and defined in India?

The first landmark judgement, where the principles for the anti-suit injunction were first discussed and defined in India, was the Modi Entertainment Network v. WSG Cricket Pt. Ltd. In this case, the Supreme Court has stated the Indian courts make themselves “courts of equity that exercise jurisdiction in personam as because it has the power to issue an anti-suit injunction.

The anti-suit injunction can not be granted under some ground or the situation. These situations are mentioned under which Section of the specific Relief Act 1963?

Section 41 of the Specific Relief Act, 1963 provides grounds and situations under which the anti-suit injunction can not be granted.

What is the most common ground that is also endorsed by the judiciary of different countries to grant the anti-suit injunction?

The preservation of justice and the oppressive judicial proceedings are the most common grounds upon which the anti-suit injunction can be granted, also endorsed by the judiciary of the different countries.

What is the meaning of ex parte ad interim injunction?

An ex parte injunction is mainly a direction, command to restrain, granted after hearing only one party in matters of ‘urgency’, without a notice to the other parties involved.

References

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