ANTI-SUIT AND ANTI-ANTI-SUIT INJUNCTION

With increase in the process of globalization, commercial transactions across borders, international boundaries have slowly blurred and disputes arising therein are no longer pertaining to one jurisdiction but involve parties and law from more than one jurisdiction. To resolve such conflicts, parties have several options such as adjudicating the dispute in the court in one’s own jurisdiction, adjudicating it in the courts of the opposite party’s jurisdiction or resorting to an out of court adjudication mechanism such arbitration.

• An anti-suit injunction is a court order that prohibits a party involved in litigation from either transferring that litigation to another court, or filing an identical lawsuit elsewhere. When a court issues an anti-suit injunction, it is essentially saying that it will be the only court to decide the outcome of the case at hand. Most of the time, anti-suit injunctions are used to prohibit parallel foreign actions, but they can also be used to limit a party’s ability to re-file the same claims in a different domestic court.

In order for the court to grant an anti-suit injunction, parameters set out by the Supreme Court are to be met which include, but are not restricted to:-

1. Amenability of the opposite side to the personal jurisdiction of the court;
2. Forum conveniens; and/or
3. Ends of justice

• An anti-anti-suit injunction is effectively an injunction restraining a court, where a proceeding in the nature of an anti-suit injunction is pending and/or where orders of anti-suit injunction have been passed, from continuing with such a proceeding. An anti-anti-suit injunction effectively renders the anti-suit injunction of the foreign court null and void.

To explain it in simple words:

“A” files suit against “B”, a foreign national in India. Meanwhile “B” approaches a court in its country, and in the interim prays for an anti-suit injunction against “A” (which interim order stops “A” from instituting a suit against “B” in India). “B” is successful in obtaining this interim anti-suit injunction in its country against “A”. Now the effect of this order would be to stop “A” from initiating any parallel legal proceedings against “B” in India, until the suit “B” instituted in its country reaches its   logical conclusion. Nevertheless “A” dauntlessly knocks on the doors of the court in India for an interim anti-anti-suit injunction (an interim order stating that the anti-suit injunction will not be applicable). And if the court in India grants this anti-anti suit injunction to “A”, and reject the    anti-suit injunction obtained by “B” from the court in its county, then both parties time travel back to the inceptive position in the entire litigation, i.e. “A” has filed a suit against B in India, nothing more, nothing less. The parties also run the risk of obtaining anti-suit injunctions against each other. If such an occurrence were to take place, both parties would be thwarted from initiating or proceeding with any litigation against the other in its country, leading to a stalemate.

The first such case where an anti-anti-suit injunction was passed pertained to disputes between Lenovo and Motorola/IPCom relating to imposition of Fair Reasonable and Non Discriminatory (FRAND) terms for grant of mobile patents. In this context, the US courts granted Lenovo an anti-suit injunction, while the courts of Paris granted Motorola/IPCom an anti-anti-suit injunction preventing the US courts from proceeding any further.

Similar anti-anti-suit injunction was passed by German Courts and English Courts as well. Even though the law in respect of anti-anti suit injunctions is still in its infancy in India, they have been granted by the Delhi High Court and the Calcutta High Court as well.

Conclusion: Anti-suit injunction is a powerful tool to enforce a decision on jurisdiction. Despite, no law providing for an anti-suit or an anti-anti-suit injunction, the general equitable jurisdiction of granting an injunction   encompasses the authority to grant an anti-suit or an anti-anti-suit injunction. Such an injunction is issued only in the most extreme of cases where the refusal of the injunction may result in palpable and gross    injustice in the meanest sense.