6th NLS Trilegal International Arbitration Conference (NLSTIAC) 2025
The Remedy of Anti-Suit Injunctions in International Commercial Arbitration
The NLSTIAC 2025 was the sixth edition of the flagship conference accompanying the National Law School Trilegal International Arbitration Moot (‘NLSTIAM’). Jointly organized by the Moot Court Society (‘MCS’) and NLS Business Law Review (‘NLSBLR’), the conference was held on 17 May 2025. The central theme was “The Remedy of Anti-Suit Injunctions in International Commercial Arbitration,” focusing on jurisdictional complexities, issues of ‘proper place’, and the effectiveness and enforceability of ASIs amidst conflicts with national laws.
The Panelists for the conference were:
- Professor Luke Nottage (Professor of Law, University of Sydney Law School)
- Ms. Manini Brar (Founder & Partner, Arbridge Chambers and Solicitors)
- Mr. Ganesh Chandru (Partner, Dua Associates)
- Ms. Steffi Mary Punnoose (Strategy & Development Manager (South Asia), SIAC)
The discussion was moderated by Prof. Harisankar K Sathyapalan (Associate Professor of Law, NLSIU) and Prof. Sahana Ramesh (Assistant Professor of Law, NLSIU).
I. Theoretical Framing: The Core Dichotomy in ASIs
The discussion, introduced by Prof. Harisankar K Sathyapalan, focused on the two conflicting principles at the heart of Anti-Suit Injunctions (ASIs). They function as a tool for upholding party autonomy and the arbitration agreement but they also carry the risk of interfering with judicial sovereignty.
Mr. Ganesh Chandru, in a play on words, likened ASIs to the Archaeological Survey of India, observing that they too serve to preserve “commercial culture” when parties have an arbitration agreement. He argued that an injunction does not strictly interfere with sovereignty because the order is directed toward the party, not the foreign court, though enforceability remains a separate issue.
Professor Luke Nottage provided comparative context, noting that Commonwealth jurisdictions have generally expanded the idea of ASIs, viewing them positively for upholding party autonomy and protecting the choice of forum against “overreaching foreign court’s jurisdiction”. He also cited a second advantage: addressing judicial dysfunction in jurisdictions where courts may disregard an AA, potentially due to issues like corruption.
The panel agreed that ASIs occupy a “delicate space,” describing them as a “grey area”. The justification for ASIs often hinges on procedural efficiency, as they are seen as a tool to prevent a respondent from attempting to delay the proceedings. However, Professor Nottage noted that ASIs can disrupt the “broader idea of comity and trust in courts” as was commonly perceived during its period of growth about 20 years ago, even in civil law jurisdictions.
In considering alternatives to injunctions, the discussion included whether other mechanisms could enforce arbitration without disrupting sovereignty. It was noted that courts may rely on issuing damages for breaching an arbitration agreement as an alternative to an injunctive remedy.
II. The Clash of Principles: Autonomy v Sovereignty
The core of the ASI debate involves balancing two conflicting principles: ASIs function as a vital tool for upholding party autonomy and honoring the Arbitration Agreement, thereby serving the ultimate goal of upholding pacta sunt servanda (agreements must be kept). However, this necessary protection comes at the cost of potential interference with judicial sovereignty.
Mr. Ganesh Chandru provided a theoretical framework, stating that an injunction is issued “to the party” and not the court, suggesting that ASIs do not strictly interfere with sovereignty, though the question of enforcement remains separate. This discussion noted that courts typically rely on two distinct bases for issuing ASIs; equitable principles and the inherent jurisdiction of the courts. The former aims to prevent injustice in foreign proceedings, while the latter is invoked to to prevent vexatious proceedings and maintain the integrity of proceedings.
A. Judicial and Procedural Objections to ASIs
Panelists detailed specific legal and practical objections that arise when an ASI is sought, challenging its normative desirability. Esteemed jurists argue that ASIs disrupt comity in international arbitration and the international dispute resolution system. Professor Luke Nottage highlighted that a central concern is the principle of Kompetenz-Kompetenz, which recognizes the competence of a court to determine its own jurisdiction. Professor Nottage also noted the tension ASIs create regarding access to justice. A sovereign state might argue that its national courts are more efficient and less expensive for its own nationals, leading to a direct conflict with the AA.
Ms. Steffi agreed that ASIs are susceptible to judicial intrusiveness and can cause offense in some jurisdictions. Critically, Professor Nottage stressed the risk of retaliation by foreign courts that feel indirectly injuncted, which creates the further risk of the ASI becoming non-enforceable. Ms. Manini Brar confirmed that the objection often revolves around whether the injunction infringes on the fundamental right to justice or takes away the jurisdiction to provide relief.
B. Determining Effectiveness: Nexus and Strategy
The consensus among the panelists was that for an ASI to be a viable remedy, its effectiveness must be strategically ensured. Ms. Manini Brar stressed that the effectiveness of the remedy hinges on the factual circumstances and whether the ASI will be respected, thereby avoiding a “torpedo of litigation” across jurisdictions. The justification for an ASI is significantly stronger when the court issuing it has a sufficient nexus to the arbitration, making it a “natural form for relief” and providing a “reasonable probability” that the ASI will be enforced and respected.
The strategic goal is to protect the outcome of the arbitration without compromising fundamental principles such as access to justice. The decision matrix for seeking an ASI must account for potential issues of public policy, and arbitrability as viewed not just by the court approached, but also by the court of the seat and potential enforcement forums.
III. Strategic Choice of Forum: Court vs. Tribunal
The discussion then turned to the pragmatic choice between seeking an anti-suit injunction (ASI) from a court or from the arbitral tribunal, with panelists weighing issues of speed, enforceability, and the applicable legal framework.
Mr. Ganesh Chandru explained that Indian courts tend to be “very careful” and prioritize comity, following a “live and let live” approach. He noted that when an arbitration agreement exists, the mandatory referral provisions under Section 8 (domestic) or Section 45 (international) of the Arbitration and Conciliation Act, 1996 indirectly restrain parallel litigation, serving a function similar to an ASI without the court expressly issuing one. In the absence of an arbitration agreement, however, Indian courts exercise their discretion under Section 41 of the Specific Relief Act, which expressly prohibits proceeding with a suit unless necessary to prevent multiplicity of proceedings. Furthermore, the second court must be subordinate to the court where the ASI is sought. Indian courts are generally reluctant to grant ASIs in domestic contexts, referencing cases such as Modi Entertainment Network & Anr v W.S.G. Cricket Pte. Ltd. For non-arbitration cases abroad, the issuing court must have personal jurisdiction over the party being restrained. Professor Luke Nottage contrasted this cautious approach with the advantages of approaching the arbitral tribunal, observing that it is often faster, particularly where emergency arbitrators or expedited procedures are available. He stressed that an order from the tribunal at the seat may also be more widely enforceable, especially in jurisdictions that give effect to foreign-seated interim measures.
Ms. Steffi added that the choice between court and tribunal is highly contingent on the stage of the proceedings. If the tribunal has not yet been constituted, the courts of the seat may be the more practical option. On the other hand, if institutional rules such as SIAC’s emergency arbitrator mechanism are available, the tribunal can issue relief in as little as 14 days, making it an attractive forum for urgent matters.
Returning to questions of legal framework, Mr. Chandru flagged the difficulties that arise when the law governing the arbitration agreement is unclear. He referred to Anupam Mittal v Westbridge Ventures II Investment Holdings, where the Singapore courts held that the law of the seat should apply in the absence of an express choice, only for the Bombay High Court to later refuse enforcement under Section 48 on public policy grounds. This divergence illustrates the fragility of enforcement when the governing law of the arbitration agreement conflicts with local policy.
Mr. Chandru further illustrated challenges regarding jurisdiction selection through the case of Insigma Technology Co. Ltd v Alstom Technology Ltd. In this instance, after a party withdrew from an ICC arbitration and refiled in SIAC, the tribunal’s jurisdiction was upheld by the Singapore court on appeal and an award was issued. However, China ultimately refused to enforce the award, emphasizing the fragility of enforcement even with a confirmed award.
Professor Nottage agreed, remarking that the law of the seat should ideally serve as the default governing law, a position now endorsed by several jurisdictions.
IV. Jurisdictional Variations and Harmonization
The panel also explored the divergent approaches that different jurisdictions have taken toward granting ASIs.
In England, the courts historically displayed a strong willingness to grant ASIs, but Professor Luke Nottage noted that this stance has shifted in recent years. Following Brexit and the restoration of jurisdictional autonomy, English courts have begun “backtracking,” often urging parties to approach the court of the seat for an ASI in order to avoid multiple and potentially conflicting applications. Professor Nottage explained that this shift stemmed partly from the Brussels regime, which was particular about conferring jurisdiction to each national court and arguably prohibited the issuance of an ASI against another member state. The decision in Allianz SpA v West Tankers Inc specifically held that English courts could not use ASIs to restrain EU courts, as doing so would undermine the rationale of the EU law regime. He highlighted that the UK’s position is reinforcing the tendency found in certain jurisdictions like the US and Russia to exercise extraterritorial authority, engaging in a race of sorts to establish them as the centre of commercial disputes.
Turning to India, Ms. Manini Brar emphasized that Indian courts are especially cautious, prioritizing comity and requiring strong justification before issuing an ASI. She endorsed this restrained “live and let live” approach, particularly in light of retaliatory measures by foreign courts in cases such as UniCredit Bank GmbH v RusChemAlliance LLC. Ms. Manini commented that this cautious view aligns with India’s general approach in international affairs. It is supported by domestic precedent, where courts emphasized that ASIs must be based on eventual enforceability, especially where foreign parties seeking remedies have tenuous links to the Indian jurisdiction.
Professor Nottage then described the Australian position, explaining that Australian courts grant ASIs under their equitable jurisdiction to prevent injustice in foreign proceedings. The original idea in Australia was that ASIs were an exceptional remedy. While this was once treated as an exceptional remedy, Australian courts now echo the English view in steering parties toward the courts of the seat in an effort to steer commerce toward it. By contrast, Mr. Ganesh Chandru highlighted Hong Kong’s more interventionist stance, observing that its courts are “active and confident” in granting ASIs, even when this affects third parties, placing them apart from more restrained jurisdictions like Singapore or England.
The conversation closed on the broader question of harmonization. Ms. Brar remarked that ASIs touch on public law concerns such as access to justice, which implicates fundamental rights and makes it extremely difficult to imagine a universally accepted framework. Professor Nottage agreed, suggesting that any convention would only succeed if it expressly recognized ASIs as a limited exception to general judicial alignment principles, such as those enshrined in the Hague Convention on Choice of Court Agreements. Mr. Chandru added that while arbitral institutions could play a role in developing protocols, the central challenge lies with national courts. He proposed that greater dialogue among judges, perhaps culminating in a concept or discussion paper(s), might provide much-needed guidance, even if the facts and circumstances of each case ultimately remain decisive.
V. Concluding Reflections: Strategy, Drafting, and the Future of ASIs
The panel concluded by reflecting on how careful drafting and procedural foresight can reduce the likelihood of parallel proceedings and the need for ASIs.
Ms. Steffi cautioned that arbitration agreements should not become mere “midnight clauses” drafted hastily at the end of negotiations. She urged parties to opt for institutional arbitration over ad hoc processes and to ensure that essential details, such as the seat of arbitration and the law governing the agreement, are clearly specified to avoid “pathologies” that delay proceedings. Talking about SIAC in particular, she discussed how the rules themselves have checks and balances to prevent parallel proceedings. The 2025 rules specifically, under a new procedure, allow preliminary determination on these matters in the interest of efficiency. Because it is not possible to gauge the breadth of the parties’ wants at the drafting stage, incorporating flexible rules like Expedited Arbitration rules affords the option to go for more efficient procedures rather than be boxed into a rigid set of rules.
Building on the need for careful drafting, Mr. Chandru specifically cautioned against the pitfalls of multi-tiered dispute resolution clauses (e.g., first negotiation, then arbitration). When incorporating such pre-arbitration steps, the clause must not be vague. Parties should specify a time period for completing the pre-arbitration steps to ensure enforceability and avoid legal challenges regarding non-compliance. A common problem in drafting is that in drawing from such contract templates, parties often do not make specific changes needed for their situations, which may cause problems in the future.
Professor Luke Nottage stressed the importance of precision and breadth in drafting, recommending that agreements be clearly worded and inclusive of all potential parties. He opined that specific clauses could be incorporated to prevent parallel proceedings: waiver clauses where parties agree that by entering into the arbitration agreement, they waive their right to go before a court, or stay clauses that require parties to seek a stay of proceedings from the foreign court before resorting to an Anti-Suit Injunction. This approach is common in many civil law jurisdictions and can strengthen the likelihood of success while saving costs. He also suggested that parties might also incorporate rules for expedited procedures, a strategy that not only strengthens the likelihood of success but also saves costs.
Mr. Ganesh Chandru pointed to the value of institutional mechanisms, noting SIAC’s streamlined procedure under Rule 13 for disputes under USD 1 million, which can deliver an award in roughly three months. Such procedures, he argued, reduce the incentive to seek recourse through external litigation.
The panel also touched upon the related concept of anti-anti-suit injunctions (AASIs). Professor Nottage explained that these generally involve applications to set aside or appeal the initial injunction, or interim applications urging the court to continue exercising jurisdiction. He noted that ignoring an AASI could even expose parties to contempt proceedings.
The overarching sentiment was that, while ASIs will likely remain a necessary tool in international arbitration, their contested nature underscores the importance of drafting robust arbitration agreements and designing procedures that minimize the risk of conflict.
* The report for the TIAC Conference was prepared by Aakarsh Bafna, Anushka Aggarwal and Shreya Rajesh, who were the rapporteurs for the event.