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The end of anti-suit injunctions?
Features
EU/Jurisdiction
Louis Flannery
is a solicitor advocate at Howes Percival. Email: louis.flannery@howespercival.com
© Reed Elsevier (UK) Ltd 2004
Louis Flannery explains why a recent ECJ decision may have sounded the death knell for anti-suit injunctions● the facts in Turner v Grovit — from London to Madrid and back again● circumstances in which courts will grant an anti-suit injunction
Lucky Felix Grovit—two pieces of good news in the space of a month. In the annualhttps://www.51lunwen.org/liuxuelunwendx/ Sunday Times “rich list” issued last month, Mr Grovit found himself nearly 30 places higher than for 2003, with a net worth said to be £425 million. Then, on 27 April, a victory in the European Court of Justice (ECJ) in Luxembourg—Turner v Grovit and Harada Limited and Changepoint SA (Case C-159/02), [2004] All ER (EC) 485.
The jurisdictional threshhold
The jurisdiction to restrain foreign proceedings has traditionally been exercised regardless of whether the foreign court has had a chance to decide upon its own jurisdiction. It is not grounded on any pretension to the exercise of judicial rights abroad, but on the fact that the party being restrained is subject to the in personam (ie personal) jurisdiction of the English court. It is sometimes thought that such an order is directed against the party, not against the foreign court. However, although not directed against the foreign court, the order is bound to indirectly affect the foreign court. Accordingly, it has been commonly accepted that the power should be exercised with caution and only where the ends of justice so require.
The requirement for in personam jurisdiction once meant the respondent to the order had to be either a British national or have assets in Britain, against which any order could be enforced. However, where the party against whom such an order is sought has agreed to bring proceedings in England—whether before the courts or by way of arbitration—the jurisdiction is assumed by their having agreed to submit to that process (Tracomin v Sudan Oil Seeds (No 2) 1983 3 All ER 140 (Court of Appeal)).
Today, an 留学生论文代写anti-suit injunction (see BOX) or restraining order is most often sought in precisely such cases; ie where the foreign 'suit' has been brought in breach of an agreement under which proceedings must be commenced in the English courts or by way of arbritration in England.
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What is an anti-suit injunction?
An anti-suit injunction is not a dress-down imperative. It is an order, issued by an English court, restraining a party from initiating or continuing foreign proceedings. The jurisdiction has been exercised by English courts for almost two centuries. The modern law is derived from s 37 of the Supreme Court Act 1981. This provides that an injunction may be granted in any case where it appears to the English court to be “just and convenient” to do so.
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Forum non conveniens
An anti-suit injunction may also be made on the basis of forum non conveniens—that another court is more suitable. Even without an agreement expressly providing for any disputes to be brought before the English courts, the English court can hold that, in effect, England is the most—or only—appropriate forum. However, in such cases the court will normally have to be satisfied that the foreign proceedings are “vexatious”