Authored By: Shibrah Aftab Khan
University of Kashmir
Abstract
This article examines the contentious role of Anti-Suit Injunctions (ASIs) in preserving the efficacy of international arbitration agreements. ASIs, orders restraining a party from litigating in a foreign forum,represent a critical flashpoint between the contractual principle of party autonomy and the doctrine of international judicial comity. The analysis traces the development of ASIs from their common law origins through significant jurisdictional conflicts, notably their prohibition under the European Union’s Brussels Regime and their subsequent ‘return’ in the UK post-Brexit. Utilizing recent landmark jurisprudence from the UK Supreme Court (UniCredit v RusChemAlliance) and the Dubai Court of Cassation, this article argues that contemporary trends increasingly prioritize enforcement of the arbitration agreement, albeit through divergent judicial and arbitral mechanisms.
Introduction
The relentless growth of international commerce necessitates efficient, neutral, and binding mechanisms for resolving cross-border disputes. International commercial arbitration has emerged as the preferred option, owing to its foundation in party consent, flexibility, and enforceability under instruments like the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[1] The effectiveness of this system is frequently threatened by “forum shopping,” where a party attempts to circumvent a valid arbitration clause by initiating parallel, disruptive, or vexatious proceedings in a national court, usually in its home jurisdiction.
To counter this contractual breach and protect the integrity of the arbitral process, common law jurisdictions developed the Anti-Suit Injunction (ASI). An ASI is an order issued by a court or arbitral tribunal designed to prevent a party from commencing or maintaining legal proceedings in another forum.[2] This remedy operates in personam, directed at the party, not the foreign court.
The role of ASIs places them in a highly controversial legal space due to an intrinsic conflict between two fundamental legal doctrines: party autonomy and international judicial comity. Arbitration is fundamentally a creature of contract, deriving its legitimacy from the parties’ mutual agreement to submit disputes exclusively to arbitration.[3] ASIs are viewed by supporters as merely enforcing this explicit contractual intent. Yet the issuance of an ASI inherently clashes with the doctrine of international judicial comity, which counsels against any court interfering with the determination of jurisdiction by another court.[4]
The contemporary role of Anti-Suit Injunctions in international arbitration is characterized by a deep doctrinal schism between jurisdictions prioritizing absolute party autonomy (typified by post-Brexit UK jurisprudence) and those prioritizing strict international comity (historically the EU, and certain civil law systems). Efficacy and legitimacy depend on national legal systems adopting balanced criteria rooted in the enforcement mechanisms of the New York Convention and the Model Law framework.
Legal Framework
Definitions and Source of Power
To appreciate the role of ASIs, it is necessary to distinguish them from related jurisdictional tools. Anti-Suit Injunctions (ASIs) are orders preventing parallel litigation in a national court forum in breach of an arbitration agreement. Anti-Arbitration Injunctions (AAIs) are orders issued by a national court that enjoin a party from initiating or maintaining proceedings before an arbitral tribunal.[5] AAIs are commonly viewed as antithetical to the Competence-Competence principle. Counter-Anti-Suit Injunctions (CASIs) are orders issued by one court restraining a party from seeking an ASI in a foreign court, representing an escalation of jurisdictional conflict between legal systems.
The consensus favors ASIs as upholding the international structure established by the New York Convention, while AAIs are treated with suspicion as they challenge the arbitral tribunal’s authority to rule on its own jurisdiction.[6]
National Court and Arbitral Tribunal Powers
In common law jurisdictions, the power to grant ASIs derives from inherent equitable jurisdiction, often codified. In England, the power is principally derived from Section 37 of the Senior Courts Act 1981. English courts exercise this discretion when foreign proceedings are commenced or continued in breach of an arbitration agreement, or where the proceedings are otherwise deemed vexatious and oppressive.
This judicial intervention is fundamentally supported by the international treaty framework. The foundation for seeking ASIs is the mandatory recognition of the arbitration agreement under Article II(3) of the New York Convention.[7] This Article requires the court of a contracting state, when seized of an action, to refer the parties to arbitration, unless the agreement is found to be “null and void, inoperative or incapable of being performed.”
In contrast, the UNCITRAL Model Law on International Commercial Arbitration establishes a legal regime empowering arbitral tribunals themselves to issue interim measures.[8] The 2006 amendments introduced a new Chapter IV A, establishing a “more comprehensive legal regime” dealing with interim measures, including ASIs, issued by the tribunal.[9] The Model Law framework is significant because a tribunal-issued ASI avoids the direct conflict of judicial comity inherent in a court-issued ASI, as the order emanates from the private, contractual mandate rather than a sovereign power interfering with another.[10]
Criteria for Granting Anti-Suit Injunctions
Regardless of whether the ASI is issued by a court or a tribunal, the underlying principles governing its application are highly consistent across jurisdictions, emphasizing equitable considerations and necessity.[11] Prima facie jurisdiction requires that the tribunal or enjoining court must first establish a reasonable belief in the validity and applicability of the underlying arbitration agreement. The breach of contract requirement mandates that foreign proceedings must be commenced or maintained in clear violation of a valid and operative arbitration clause. Necessity or irreparable harm means the ASI must be necessary to prevent irreparable harm to the applicant or the arbitral process. Urgency requires that relief must be sought immediately, as delay may be grounds for refusal. Proportionality demands that the potential harm to the applicant must outweigh the potential harm to the respondent and the risk of offending judicial comity.
Judicial Interpretation: The European Contradiction and the Post-Brexit Reversion
A. The Era of Prohibition: Judicial Comity Paramount (Pre-2021)
For decades, the efficacy of ASIs within Europe was curtailed by the European Union’s framework for civil and commercial procedural matters. Regulations like the Brussels I Recast[12]aimed to unify conflict of laws rules based on mutual trust among Member State judiciaries.
The fundamental incompatibility of ASIs with this regime was established by the European Court of Justice. In Turner v Grovit,[13] the ECJ ruled that the Brussels Convention precluded the grant of an injunction prohibiting a party from commencing proceedings in another Member State, even where the party was acting in “bad faith.” This ruling underscored the principle that all EU courts were deemed equally competent to assess their own jurisdiction.
This prohibition was critically extended to arbitration in Gasser GmbH v MISAT Srl.[14] Although arbitration is explicitly excluded from the scope of the Regulation, the ECJ held that an ASI sought in support of an arbitration agreement nevertheless undermined the general regime of the Brussels Regulation. The ECJ’s reasoning was based on the premise that granting the ASI deprived the Member State court first seised of the power to assess its own jurisdiction.
The West Tankers judgment created a significant vulnerability for arbitration clauses within the EU, forcing parties to rely solely on the Competence-Competence rule of the foreign court first seised, even if that court was known to be slow or potentially hostile to arbitration. This decision was criticized by many practitioners who felt it failed to adequately protect party autonomy against procedural abuse.[15]
B. The Return of the ASI (Post-Brexit)
The United Kingdom’s departure from the EU and the subsequent decision not to implement the Brussels I Recast or the relevant ECJ case law into domestic law immediately removed the legal constraint established by West Tankers. This legislative freedom allowed the UK to revert fully to its common law powers under Section 37 of the Senior Courts Act 1981, enabling the “return” of the ASI mechanism.[16]
This legal bifurcation fundamentally alters the arbitration landscape. The UK now has the capacity to issue ASIs to enforce arbitration clauses, prioritizing the protection of private contractual rights (party autonomy) over the rigid demands of EU mutual trust (judicial comity). This shift aims to consolidate the UK’s position as a robust hub for international dispute resolution.
Critical Analysis and Comparative Global Jurisprudence
A. The English Model: Global Enforcement of Foreign Arbitration Agreements
The modern high-water mark for the common law ASI is UniCredit Bank GmbH v RusChemAlliance LLC.[17] The UK Supreme Court upheld a final ASI restraining RusChemAlliance, a Russian corporation, from continuing Russian court proceedings that had been brought in breach of performance bonds. The underlying arbitration agreement stipulated English governing law but provided for ICC arbitration seated in Paris.
This decision is transformative because it represents the “first fully contested appellate decision granting a final anti-suit injunction to enforce a non-English seated arbitration where the underlying contract did not confer express jurisdiction on the English court.”[18] The English court asserted its jurisdiction not as the curial court (which was France), but as the court of the governing law, acting in supportive aid of the arbitration.
A critical justification, elaborated by Lord Leggatt, concerned judicial comity. The court found that granting the ASI did not violate comity with either Russian or French courts.[19] Evidence suggested that French courts, which are supervisory over the Paris seat, would have “no objection to the grant of an anti-suit injunction by the English court,” as the relief served to uphold the New York Convention. The court reasoned that since the ASI remedy was not available in the curial courts, England was the natural forum to enforce the arbitration agreement against proceedings in a jurisdiction demonstrably hostile to the clause.
B. Extending ASIs to Non-Parties
ASIs are fundamentally limited by the principle of party autonomy, applying only to parties bound by the arbitration agreement. Extending them to non-parties requires exceptional legal justification.
The Singapore Court of Appeal addressed this in Asiana Airlines Ltd v Gate Gourmet Korea Ltd & Ors.[20] While an ASI was upheld against the signatory for violating the Singapore-seated arbitration clause, the court discharged the ASI restraining actions against the directors (non-parties). The SGCA clarified that for an ASI to succeed against a non-party, the applicant must demonstrate “vexation or oppression,” meaning bad faith on the part of the plaintiff. Simple breach of contract is insufficient for non-signatories, establishing a high threshold for extending this extraordinary remedy.
C. The Civil Law Counterbalance: Arbitral Supremacy
In contrast to the supportive judicial intervention seen in the UK, many civil law jurisdictions that have adopted the Model Law favor strengthening the Competence-Competence principle through strict arbitral autonomy.
The Dubai Court of Cassation delivered a pivotal ruling in Appeal No 657 of 2025.[21] This decision overturned an appellate court judgment that had annulled a tribunal-issued ASI, reasoning that the ASI violated the constitutional right to access courts. The Court of Cassation clarified that, pursuant to Article 21 of the UAE Federal Arbitration Law, the arbitral tribunal has the exclusive authority to amend or revoke the Anti-Suit Injunction it granted.
This ruling marks a significant moment in the evolution of commercial arbitration in the UAE. By affirming the exclusive power of the tribunal over its interim measures, the decision insulates tribunal-issued ASIs from national appellate court interference. This approach reinforces arbitral autonomy to the maximum extent permitted by law. While the UK model relies on proactive court support, the UAE model dictates that the tribunal itself must issue the ASI, shifting the authority from the national court to the contracted arbitral body.
D. Comparative Jurisdictional Approaches
The divergence in policy objectives, whether prioritizing judicial comity, contractual autonomy, or arbitral supremacy, demonstrates the global lack of uniformity in how ASIs are treated.
England and Wales prioritizes party autonomy and New York Convention enforcement through a proactive approach that grants ASIs for foreign-seated arbitrations, as exemplified in UniCredit v RusChemAlliance.[22] The European Union (Pre-2021) prioritized judicial comity and mutual trust through a highly restrictive approach, deeming ASIs incompatible with the EU judicial cooperation framework. Dubai (UAE) prioritizes arbitral autonomy through a tribunal-centric approach where the power to issue and revoke rests exclusively with the arbitral tribunal. Germany prioritizes judicial restraint and comity, remaining reluctant to issue ASIs to protect against foreign liability but may issue Anti-Anti-Suit Injunctions to protect exclusive national jurisdiction.[23]
The existence of powerful protective tools like the ASI invites jurisdictional confrontation. Counter-anti-suit injunctions escalate tensions severely.[24] This highlights that when two legal systems hold conflicting views on jurisdictional authority, the ASI mechanism risks triggering a cycle of judicial resistance. The divergence seen in the UK and the UAE demonstrates two non-harmonized paths to enforcing party autonomy, necessitating a focused effort toward harmonization.[25]
Suggestions and Way Forward
While the New York Convention provides a universal foundation for enforcing arbitration agreements, the means of enforcement via ASIs remain fractured. UNCITRAL should issue enhanced commentary or guidance clarifying the interface between tribunal-issued ASIs and supportive court-issued ASIs. This guidance must explicitly address situations where the arbitration seat is hostile or unable to provide effective interim relief.
National laws governing ASIs should mandate the rigorous application of proportionality, necessity, and urgency tests. The ASI should be defined strictly as a remedy of last resort, invoked only when relying on the foreign court to honor the New York Convention has demonstrably failed due to local judicial hostility or lack of capacity. This approach minimizes the comity conflict by demonstrating that the purpose is protection, not competition.
Practitioners must be mindful of jurisdictional differences. When drafting contracts, parties should clearly designate the governing law of the contract and the arbitration agreement. The UniCredit case illustrates that selecting a governing law with a robust common law judiciary may secure powerful supportive court intervention even if the arbitration seat is located in a less interventionist jurisdiction.[26] To preempt the nuisance and delay of parallel litigation, parties should consider incorporating express contractual waivers of their right to seek relief in national courts other than the courts of the supervisory seat.
National courts granting ASIs must follow the precedent set by the UK Supreme Court in UniCredit, which involves an active assessment of the perspective of the foreign jurisdiction. The granting court must be satisfied that the ASI is narrowly tailored and specifically focused on frustrating vexatious conduct or upholding the arbitration contract, rather than directly challenging foreign sovereignty.
Conclusion
Anti-Suit Injunctions remain an indispensable, yet inherently controversial, instrument in international arbitration. They function as a powerful shield for the foundational principle of party autonomy, allowing commercial parties to guarantee the integrity of their contractual choice against disruptive judicial intervention. The landscape is currently defined by significant doctrinal divergence: the post-Brexit UK has fully embraced the ASI as a tool of global enforcement, even for foreign-seated arbitrations, while Model Law jurisdictions like the UAE are solidifying the tribunal’s exclusive authority to manage these boundaries. Navigating this environment requires expert application of conflict of laws principles and a high degree of judicial restraint in supportive jurisdictions. The future legitimacy and widespread acceptance of ASIs hinges on their consistent application as a proportionate, narrowly tailored remedy focused exclusively on supporting the universally recognized obligation to arbitrate under the New York Convention.
Bibliography
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Endnote(S):
[1] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958) 330 UNTS 38.
[2] Ardavan Arzandeh, ‘Anti-Suit Injunctions in Support of Foreign Dispute-Resolution Clauses’ (2025) 74 ICLQ 233.
[3] Lorenzo Fasolo, The Evolving Role of Anti-Suit Injunctions in International Arbitration: A Comparative Focus on English and French Law (Université Assas Paris II 2025).
[4] David Cookman, ‘Anti-Suit and Anti-Arbitration Injunctions: The Parallel Evolution of Judicial Remedies’ (2024) 90(1) Arbitration 89.
[5] ibid.
[6] UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended 2006).
[7] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (n 1) art II(3).
[8] UNCITRAL Model Law (n 6).
[9] ibid ch IV A.
[10] Fasolo (n 3).
[11] Arzandeh (n 2).
[12] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I Recast) [2012] OJ L351/1.
[13] Turner v Grovit (C-159/02) [2004] ECR I-3565.
[14] Gasser GmbH v MISAT Srl (C-116/02) [2003] ECR I-14693.
[15] Kimberley Bazelaïs, ‘Should French Courts Issue Anti-Suit Injunctions?’ (Kluwer Arbitration Blog, 31 July 2025) <www.kluwerarbitration.com> accessed 25 October 2025.
[16] ‘UK Supreme Court Maintains Anti-Suit Injunction in Support of Arbitration Agreements’ (Ashurst Insight, 9 October 2024) <www.ashurst.com> accessed 25 October 2025.
[17] UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 45.
[18] ‘Anti-Suit Injunctions in Support of Foreign-Seated Arbitrations: The Final Word by the English Courts’ (Wolters Kluwer Arbitration Blog, 26 January 2025) <www.wolterskluwer.com> accessed 25 October 2025.
[19] UniCredit Bank GmbH v RusChemAlliance LLC (n 17).
[20] Asiana Airlines Ltd v Gate Gourmet Korea Ltd & Ors [2023] SGCA (i) 8aa.
[21] The Dubai Court of Cassation Judgment (Case No 657/2025) (K&L Gates, 13 August 2025).
[22] UniCredit Bank GmbH v RusChemAlliance LLC (n 17).
[23] Burkhard Hess, ‘US Anti-Suit Injunctions and German Anti-Anti-Suit Injunctions in SEP Disputes’ (2022) 22(6) World Intellectual Property Journal 633.
[24] ‘Protection Against the Breach of Choice-of-Court Agreements: A Comparative Analysis of Remedies in English and German Courts’ (2023) TandF Journal 94.
[25] Fasolo (n 3).
[26] ‘The UKSC Has Its Say on ASIs to Support Foreign-Seated Arbitrations’ (Linklaters Arbitration Blog, September 2024) <www.linklaters.com> accessed 25 October 2025.
