Anti-Suit Injunctions PDF

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Anti-Suit Injunctions What are anti-suit injunctions? An anti-suit injunction (ASI) prohibits its target from commencing or continuing proceedings in a foreign court T...

The Conflict of Laws A portion of the Part B Contemporary Legal Knowledge & Practice Module Marcus Teo, Sheridan Fellow, NUS Law Anti-Suit Injunctions What are anti-suit injunctions? An anti-suit injunction (ASI) prohibits its target from commencing or continuing proceedings in a foreign court The rationale: preventing fragmentation of proceedings (and the outflanking of the Singapore court’s jurisdiction) The “test” for anti-suit injunctions Singapore courts will consider five factors in determining whether they should grant an ASI (Lakshmi): (a) whether the defendants are amenable to the jurisdiction of the Singapore court; (b) the natural forum for resolution of the dispute between the parties; (c) the alleged vexation or oppression to the claimant if the foreign proceedings are to continue; (d) the alleged injustice to the defendant as an injunction would deprive the defendant of the advantages sought in the foreign proceedings; and (e) whether the institution of the foreign proceedings is in breach of any jurisdiction agreement between the parties. The “test” for anti-suit injunctions However, inaccurate to call this a “test” (i.e., like FNC), because the five factors do not constitute one enquiry – instead: Factor (a) – jurisdiction – is a pre-requisite; if the Singapore court lacks jurisdiction over parties, no interim injunctions (including but not limited to ASIs) can issue Cf new Civil Law Act 1909 s 4(10A), empowering courts to issue free-standing interim injunctions where “just and convenient” (not covered) Factors (b)-(d) on the one hand, and factor (e) on another, constitute different avenues to obtaining an anti-suit injunction – i.e., “non-contractual” and “contractual” injunctions Contractual anti-suit injunctions Where there is a jurisdiction clause choosing Singapore courts, courts will readily grant ASIs restraining foreign proceedings – this simply holds parties to their bargains (Sun Travels) The jurisdiction clause must choose Singapore courts, because courts will not be “international busybodies” (Akai) – i.e., they will not generally grant ASIs where parties choose the courts of a foreign state, even to restrain proceedings in another foreign state Contractual anti-suit injunctions However, despite a Singapore jurisdiction clause, courts may deny the ASI where (Sun Travels): There is “strong cause” not to enforce the jurisdiction clause; or The application was unreasonably delayed, with foreign proceedings now being at an advanced stage Even a non-chosen court has a legitimate interest in not having its time and expenses wasted Thus, the application is reasonably delayed only if the delay was due to the applicant’s objections to the foreign court’s jurisdiction Non-contractual anti-suit injunctions By contrast, Singapore courts will generally be reluctant to grant ASIs when no Singapore jurisdiction clause exists “Comity” requires that the Singapore court not interfere with foreign proceedings simply because it thinks that it is better-placed to try parties’ dispute – something more is required before the court intervenes Non-contractual anti-suit injunctions Typically, a non-contractual ASI is only consistent with comity if (Lakshmi) The Singapore court has jurisdiction over the respondent (presence, submission, or jurisdictional nexus) (factor (a)); The Singapore court is the natural forum (factor (b)); and It would be vexatious or oppressive for D to continue the foreign proceedings against C (factor (c)) The “injustice” enquiry (factor (d)) is usually subsumed under this Note: delay is also relevant here as it is in the contractual context (Lakshmi) Non-contractual anti-suit injunctions Foreign proceedings are “vexatious or oppressive” for the applicant when they are effectively “unconscionable” (Kirkham v Trane) – such as where they: Involve “oppressive procedures” or “extreme inconvenience” (e.g., denial of substantive justice in the FNC sense); Are in “bad faith” – i.e., commenced only to frustrate the Singapore proceedings (e.g., Lakshmi, cf Kirkham) End