Anti-Suit Injunctions in European Law

1. Meaning and Scope

An anti-suit injunction (ASI) is a court order restraining a party from commencing, continuing, or pursuing proceedings in a foreign court or tribunal.

Its basic purpose is to protect:

• an exclusive jurisdiction agreement;
• an arbitration agreement;
• the jurisdiction of the issuing court;
• contractual rights;
• the effectiveness of dispute-resolution arrangements.

For example:

Company A and Company B agree that disputes must be resolved exclusively in the courts of France. Company B nevertheless starts proceedings in Germany. Company A may seek an anti-suit injunction from the French courts requiring Company B to discontinue the German proceedings.

The central difficulty in European law is that an injunction directed against a foreign proceeding can interfere with the jurisdiction and judicial sovereignty of another State.

Consequently, the European legal position has developed a strong distinction between:

1. anti-suit injunctions restraining proceedings in another EU Member State, and
2. anti-suit injunctions concerning proceedings in third countries outside the EU.

2. Nature of an Anti-Suit Injunction

An ASI is generally in personam.

It operates against the litigant rather than directly against the foreign court.

The order normally says, in substance:

"You, the defendant, must not pursue the foreign proceedings."

It does not formally order the foreign judge to stop exercising jurisdiction.

Nevertheless, the practical effect can be significant because the foreign proceedings may be terminated or abandoned if the party complies.

This creates the central tension:

Protection of contractual jurisdiction/arbitration rights versus respect for another court's jurisdiction.

3. Principal Legal Foundations

An anti-suit injunction may be based upon:

A. Exclusive jurisdiction clause

The parties agree that disputes must be brought only before a specified court.

B. Arbitration agreement

The parties agree to arbitration.

C. Contractual promise

A party expressly promises not to litigate elsewhere.

D. Abuse of process

Foreign litigation may be oppressive, vexatious, or abusive.

E. Protection of court jurisdiction

A court may seek to protect its own jurisdiction where legally permissible.

4. European Legal Framework

The principal sources are:

• Brussels I Regulation (Recast), Regulation 1215/2012;
• the New York Convention 1958;
• national arbitration legislation;
• national procedural law;
• Article 6 ECHR;
• Article 47 EU Charter where EU law applies;
• principles of mutual trust and judicial cooperation within the EU.

The crucial issue is whether an anti-suit injunction is compatible with the EU principle that courts of Member States must respect each other's jurisdiction.

5. The Leading Case: Turner v Grovit

Turner v Grovit — CJEU, C-159/02

This is one of the most important authorities.

Facts

Mr Turner was involved in employment litigation in England. Proceedings were also pursued in Spain.

The English court issued an anti-suit injunction restraining the foreign proceedings.

CJEU decision

The CJEU held that a court of one EU Member State cannot issue an anti-suit injunction restraining proceedings before the courts of another Member State where the Brussels jurisdiction regime applies.

Principle

The reason is not simply procedural technicality.

The injunction interferes with:

the foreign court's ability to determine its own jurisdiction.

The EU system is based on mutual trust between Member State courts.

If an English court could tell a Spanish court not to exercise jurisdiction, this would undermine the European jurisdictional system.

Importance

Turner establishes a fundamental proposition:

An EU Member State court cannot use an anti-suit injunction to restrain proceedings in another Member State merely because the issuing court considers its own jurisdiction preferable.

6. Allianz SpA v West Tankers Inc

Allianz SpA v West Tankers Inc — CJEU, C-185/07

This is perhaps the most famous European arbitration-related anti-suit injunction case.

Facts

A collision involving the vessel Front Comor occurred in Sicily.

Insurance and contractual disputes involved arbitration in London.

Proceedings were commenced in Italy.

The English courts issued an anti-suit injunction requiring the Italian proceedings to stop because the dispute was covered by an arbitration agreement.

CJEU decision

The CJEU held that the anti-suit injunction was incompatible with EU law.

Principle

An anti-suit injunction restraining proceedings in another Member State undermines the effectiveness of the Brussels jurisdictional system.

The fact that the dispute was subject to arbitration did not permit the English court to restrain the Italian proceedings in this manner.

Importance

The case established that:

An arbitration agreement did not provide a general EU-law exception permitting one Member State court to restrain litigation in another Member State.

7. Gazprom — CJEU, C-536/13

The position became more nuanced after Gazprom.

Facts

The dispute concerned an arbitration award that required a party to stop or limit proceedings before a Lithuanian court.

The issue was whether the Brussels jurisdiction regime prevented enforcement of that arbitral award.

CJEU decision

The CJEU distinguished West Tankers.

The Court held that the Brussels Regulation did not prevent a Member State court from recognising and enforcing an arbitral award containing an anti-suit measure.

Important distinction

The case demonstrates a major difference between:

a court issuing an anti-suit injunction

and

an arbitral tribunal issuing an anti-suit measure whose award is later subject to recognition/enforcement.

Importance

Gazprom therefore prevents an overly broad proposition that every anti-suit measure is automatically prohibited in the European legal order.

8. The Alexandros T

The Alexandros T — UK Supreme Court, [2013] UKSC 70

This is an important comparative authority concerning contractual obligations arising from settlement agreements and jurisdiction clauses.

The litigation concerned disputes connected with an earlier maritime insurance dispute and subsequent settlement agreements.

Principle

Courts may enforce contractual jurisdiction agreements and examine whether subsequent litigation violates contractual obligations.

Relevance

The case illustrates the contractual dimension of anti-suit relief:

Parties may create legally enforceable obligations concerning where disputes are to be litigated.

However, within the EU, the ability of a court to issue an ASI against proceedings in another Member State remains constrained by Turner and West Tankers.

9. The Angelic Grace

Aggeliki Charis (The Angelic Grace) — English Court of Appeal, 1995

This is a foundational English arbitration authority.

Facts

A party commenced foreign proceedings despite an arbitration agreement providing for arbitration in London.

Decision

The English Court of Appeal granted an anti-suit injunction.

Principle

Where a party has promised to arbitrate, commencing court proceedings elsewhere may constitute a breach of contract.

Importance

The case strongly established the English approach to protecting arbitration agreements.

However, its significance must now be qualified by EU law in intra-EU litigation.

10. AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk

AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC — UK Supreme Court, 2013

Facts

The parties had an arbitration agreement.

One party nonetheless commenced proceedings in Kazakhstan.

Principle

The English courts recognised the importance of protecting the contractual arbitration agreement and granted relief restraining the foreign litigation.

Importance

The case demonstrates the strong common-law principle that an arbitration agreement is a contractual promise deserving judicial protection.

However, it must be distinguished from an ASI against proceedings in another EU Member State.

11. Ust-Kamenogorsk and the Third-Country Distinction

The case is particularly important because it illustrates that the European position is not:

"Anti-suit injunctions are always prohibited."

Instead:

Anti-suit injunctions against EU Member State proceedings are heavily restricted by EU law, while injunctions concerning proceedings in third countries can remain available under national law, subject to applicable international obligations.

This distinction is fundamental.

12. The Front Comor / West Tankers Principle

The West Tankers decision can be reduced to a simple proposition:

Within the EU:

Court A in Member State X generally cannot issue an anti-suit injunction preventing a party from litigating in Member State Y.

Why?

Because Member State Y's court must be able to determine its own jurisdiction under the European jurisdictional system.

The principle of mutual trust is central.

13. Mutual Trust

The EU judicial system assumes that Member State courts generally:

• respect EU law;
• provide independent adjudication;
• apply common jurisdictional rules;
• recognise judgments of other Member States;
• cooperate judicially.

An anti-suit injunction can undermine this structure because it effectively says:

"The court of another Member State should not hear this dispute."

EU law generally requires that jurisdictional objections be addressed through the mechanisms established by EU jurisdictional law rather than unilateral injunctions from another Member State.

14. Anti-Suit Injunctions and Arbitration

Arbitration creates additional complexity.

The parties may have agreed:

"All disputes shall be determined exclusively by arbitration in London."

One party then starts litigation in another country.

Ordinarily, the arbitral party might seek:

• stay of foreign proceedings;
• anti-suit injunction;
• declaration of validity of arbitration agreement;
• appointment of arbitrator;
• damages for breach of arbitration agreement;
• enforcement of an arbitral award.

But the availability of an ASI depends heavily upon where the foreign proceedings are located.

15. Intra-EU Arbitration

After West Tankers, a Member State court could not simply issue an ASI restraining proceedings in another Member State.

However, Gazprom demonstrated that arbitral tribunals and national courts dealing with arbitral awards operate within a somewhat different legal framework.

This produces a nuanced distinction between:

• court-issued ASIs;
• tribunal-issued anti-suit measures;
• recognition of arbitral awards;
• enforcement proceedings.

16. Anti-Suit Injunctions and Brussels I Recast

The Brussels I Recast Regulation establishes rules concerning:

• jurisdiction;
• recognition;
• enforcement;
• lis pendens;
• related actions.

The Regulation seeks to prevent conflicting jurisdictional decisions while maintaining predictable allocation of jurisdiction.

An anti-suit injunction can conflict with this system if one Member State court attempts to control litigation before another Member State court.

17. Arbitration Exclusion

The Brussels regime contains an important arbitration exclusion.

However, the existence of that exclusion does not mean:

"Any court can issue an ASI concerning an arbitration agreement."

That would be too broad.

The West Tankers litigation demonstrates why the practical consequences of an ASI may still fall within the broader European jurisdictional framework.

18. Anti-Suit Injunctions Against Third-Country Proceedings

The position is different where the foreign proceedings are in a country outside the EU.

Examples:

• India;
• United States;
• China;
• Singapore;
• Switzerland;
• Australia.

Depending upon national law, an EU Member State court may potentially issue an ASI restraining proceedings in such a country.

But the court must consider:

• comity;
• jurisdiction;
• contractual obligations;
• arbitration agreement;
• oppression;
• vexation;
• adequacy of foreign remedies;
• international treaties;
• sovereignty concerns.

19. Comity

Comity means respect for the jurisdiction and judicial institutions of another State.

A court considering an ASI concerning third-country proceedings may ask:

1. Is the foreign proceeding oppressive?
2. Is it vexatious?
3. Does it breach a contractual jurisdiction agreement?
4. Is the applicant acting promptly?
5. Will the injunction interfere excessively with the foreign court?
6. Is there a genuine contractual promise supporting the injunction?
7. Is another remedy adequate?

Comity is particularly important because an ASI can have international consequences.

20. Exclusive Jurisdiction Clauses

Suppose a contract says:

"The courts of France shall have exclusive jurisdiction."

The other party starts proceedings in Switzerland.

The French court may consider an ASI depending upon applicable European and national law.

Important considerations include:

• whether the clause is valid;
• whether it is exclusive;
• whether the dispute falls within its scope;
• whether the defendant accepted it;
• whether the foreign litigation breaches the contractual promise;
• whether EU jurisdiction rules permit the requested remedy.

21. Choice of Court and Arbitration Clauses

These should be distinguished.

Exclusive jurisdiction clause

"French courts have exclusive jurisdiction."

Arbitration clause

"Disputes shall be resolved by arbitration in Paris."

Non-exclusive jurisdiction clause

"French courts have jurisdiction."

The legal consequences can be substantially different.

A party seeking an ASI should therefore identify precisely what the contract promised.

22. Requirements for an Anti-Suit Injunction

Where an ASI remains legally available, courts commonly consider:

1. Valid agreement

Is there a valid arbitration or jurisdiction agreement?

2. Scope

Does the foreign proceeding fall within that agreement?

3. Breach

Has the respondent violated the agreement?

4. Adequacy

Is injunctive relief necessary?

5. Conduct

Has the applicant acted promptly?

6. Justice

Would the order be just and equitable?

7. International considerations

Would the order improperly interfere with a foreign court?

23. Mandatory vs Discretionary Relief

An ASI is generally an equitable/discretionary remedy in systems following the common-law tradition.

Therefore, even where a contractual breach exists, the court may consider:

• delay;
• conduct;
• prejudice;
• alternative remedies;
• public policy;
• international comity.

But the strength of the contractual arbitration promise can make the case for an injunction particularly strong.

24. Anti-Suit Injunction vs Anti-Anti-Suit Injunction

An unusual but important development is the anti-anti-suit injunction (AASI).

Example:

1. Court A orders Party X not to sue in Court B.
2. Court B orders Party X not to obey Court A's injunction.
3. Court A might then be asked to restrain Party X from seeking or complying with Court B's injunction.

This creates a jurisdictional spiral.

European courts generally approach such conflicts cautiously because they can seriously undermine judicial comity.

25. Anti-Suit Injunction vs Stay of Proceedings

These remedies should be distinguished.

Stay

A court stops or suspends its own proceedings.

Anti-suit injunction

A court orders a party not to pursue proceedings elsewhere.

Anti-enforcement injunction

A court may restrain a party from enforcing a foreign judgment or award in certain circumstances.

These remedies raise different jurisdictional questions.

26. Anti-Suit Injunction and Article 6 ECHR

Article 6 guarantees access to a fair hearing.

An ASI could potentially affect access to court.

Therefore, a court should consider whether the order:

• arbitrarily prevents access to justice;
• deprives the claimant of a legitimate forum;
• is based upon law;
• serves a legitimate objective;
• is proportionate.

However, parties can voluntarily agree to arbitration or exclusive jurisdiction.

Therefore, an ASI enforcing a valid contractual dispute-resolution agreement does not automatically violate Article 6.

27. Anti-Suit Injunction and Article 47 EU Charter

Where EU law applies, Article 47 protects:

• effective judicial protection;
• access to an independent tribunal;
• fair proceedings.

An ASI must therefore be considered against the EU's broader commitment to effective judicial protection.

The West Tankers approach reflects the principle that one Member State court should not undermine another Member State court's ability to apply EU jurisdictional rules.

28. Anti-Suit Injunction and Enforcement

Violation of an ASI can have serious consequences in the issuing jurisdiction.

Depending upon national law, consequences may include:

• contempt of court;
• fines;
• attachment of assets;
• adverse procedural orders;
• damages;
• enforcement against the violating party.

But an ASI does not automatically bind the foreign court itself.

29. Important Defences

A respondent may argue:

A. No valid arbitration agreement

The agreement was never formed or is invalid.

B. No jurisdiction clause

The contract does not contain an exclusive clause.

C. Foreign dispute outside the clause

The foreign proceeding concerns a different dispute.

D. Arbitration clause does not cover the claims

The claims are outside the arbitration agreement.

E. Waiver

The applicant previously accepted the foreign proceedings.

F. Delay

The applicant waited too long before seeking relief.

G. Comity

The injunction would improperly interfere with a foreign sovereign court.

H. EU-law prohibition

The proceedings are before another EU Member State court.

I. Public policy

The injunction would violate mandatory legal principles.

30. Case Comparison

31. Practical Example

Assume:

• Company A is incorporated in France.
• Company B is incorporated in Germany.
• Their contract contains an exclusive French jurisdiction clause.
• Company B commences proceedings in Germany.

Company A wants a French ASI.

Under European law

A French court generally cannot issue an anti-suit injunction requiring Company B to stop the German proceedings merely because the French court believes France has exclusive jurisdiction.

The German court must determine jurisdiction using the applicable European jurisdiction rules.

This follows the logic of Turner v Grovit.

32. Arbitration Example

Suppose:

• Company A and Company B agree to London arbitration.
• Company B starts proceedings in Italy.
• Company A asks an English court for an ASI.

The classic English approach, exemplified by The Angelic Grace, would strongly support protecting the arbitration agreement.

But because Italy is an EU Member State, West Tankers prevents the English court from simply issuing an ASI restraining the Italian proceedings in the manner traditionally available under English law.

This illustrates why:

European jurisdictional law can override traditional common-law anti-suit principles.

33. Third-Country Example

Suppose the same arbitration agreement exists, but Company B starts proceedings in India.

The analysis is different.

The English or another European court may potentially consider an ASI because the proceedings are not before another EU Member State court.

The court would then consider:

• the arbitration agreement;
• breach;
• contractual expectations;
• comity;
• adequacy of Indian remedies;
• timing;
• proportionality.

The precise outcome depends on the relevant national law.

34. Evidence Required

An applicant should normally provide:

• the underlying contract;
• arbitration clause;
• jurisdiction clause;
• correspondence;
• copy of foreign proceedings;
• evidence of service;
• procedural history;
• evidence demonstrating breach;
• evidence of urgency;
• evidence of threatened prejudice;
• applicable foreign-law evidence where necessary.

35. Remedies Associated with Anti-Suit Litigation

A successful applicant may obtain:

1. anti-suit injunction;
2. declaration concerning jurisdiction;
3. stay of domestic proceedings;
4. enforcement of arbitration agreement;
5. damages for breach of arbitration agreement;
6. costs;
7. enforcement of arbitral award;
8. anti-enforcement relief in appropriate cases.

The availability of each remedy depends on the relevant jurisdiction.

36. Key Distinction: Intra-EU vs Third Country

This is the single most important practical distinction.

Proceedings in another EU Member State

Turner and West Tankers impose strong restrictions on court-issued anti-suit injunctions.

Proceedings in a third country

National courts may have greater freedom to grant ASIs, subject to:

• national law;
• arbitration legislation;
• comity;
• international conventions;
• proportionality.

37. Key Legal Principles

The European law of anti-suit injunctions can therefore be summarised as follows:

1. An anti-suit injunction restrains a party rather than formally restraining the foreign court.
2. It is principally used to protect jurisdiction or arbitration agreements.
3. Traditional common-law courts have historically used ASIs extensively.
4. EU law substantially restricts ASIs directed against proceedings in another EU Member State.
5. Turner v Grovit is the leading jurisdictional authority.
6. West Tankers extended the principle into arbitration-related litigation.
7. Mutual trust between Member State courts is a fundamental justification.
8. Gazprom demonstrates that arbitral anti-suit measures require separate analysis.
9. The position concerning third-country proceedings is different.
10. Exclusive jurisdiction clauses and arbitration agreements remain legally important.
11. Comity becomes particularly important in third-country cases.
12. An ASI should not be confused with a stay of proceedings.
13. An anti-anti-suit injunction can create additional jurisdictional conflict.
14. Article 6 ECHR and Article 47 EU Charter provide important fair-trial considerations.
15. The validity, scope and enforceability of the underlying dispute-resolution agreement are central.

Conclusion

Anti-suit injunctions occupy one of the most technically difficult areas of European private international law because they sit at the intersection of contractual autonomy, arbitration, jurisdiction, international comity and judicial cooperation.

The historical common-law approach, exemplified by The Angelic Grace and AES Ust-Kamenogorsk, strongly protects contractual arbitration agreements. However, within the EU, the CJEU's decisions in Turner v Grovit and Allianz v West Tankers fundamentally restrict the ability of one Member State's courts to restrain proceedings before another Member State's courts.

Gazprom adds an important qualification by distinguishing court-issued injunctions from arbitral measures and their subsequent recognition or enforcement.

Accordingly, the first question in any European anti-suit injunction dispute should be:

Where are the foreign proceedings taking place?

If they are in another EU Member State, the Turner/West Tankers principle is central. If they are in a third country, national law, arbitration law, contractual rights and international comity become substantially more important.

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