Anti-Suit Injunctions:

Foreign proceedings may be restrained by way of an injunction, not only when they are vexatious, in the sense that the proceedings are frivolous or useless, but also where they are oppressive. However, vexation or oppression should not be regarded as the only grounds on which the jurisdiction is to be exercised. The fundamental requirement is that an injunction will be granted only where it is required in the interests of justice.

The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of an anti-suit injunctions.

Thus, for example:

• If an estate is being administered ; or
• A petition in bankruptcy has been presented; or
• Winding up proceedings have been commenced

an injunction may be granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets.

The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories.  Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.

If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.

Another area of modern law that has a connection with comity, and which in turn may benefit from a consideration of the principle, is the debate regarding the appropriate "seat" or "forum" for a matter - a topic of particular relevance to the issue of anti-suit injunctions, to the practice of forum shopping by parties, and to the working out of the proper relationship between the seat and enforcement courts in international commercial arbitration.

Commercial realities have meant that more often than not multiple jurisdictions may be able to legitimately claim to be the appropriate forum, or to have a significant connection with the matter. Likewise it has made it more likely that parties might institute parallel proceedings or seek to have a matter restrained (through anti-suit injunctions, and stay of proceedings) on the basis that they should be heard in a different jurisdiction.

Moreover it has become common practice amongst commercial parties to include choice of court, choice of forum, or choice of law clauses within their contracts (and thereby to seek to determine for themselves what will be considered the appropriate seat, venue, or jurisdiction).

If you are your business are involved or may be involved in a dispute with a person or entity based overseas, or drafting a contract, we recommend that you contact our firm and arrange an appointment to see one of our International Disputes & Litigation Solicitors. Please call us on (02) 9233 4048 or send an email to info@navado.com.au. 

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