COL 4 - Anti-suit Injunctions PDF

Takeaways Anti-suit injunctions prevent parties from commencing or continuing proceedings in a foreign court and enforce the jurisdiction of the Singapore court. There are two types of anti-suit injunctions: contractual and non-contractual. Contractual anti-suit injunctions are issued when there...

Takeaways Anti-suit injunctions prevent parties from commencing or continuing proceedings in a foreign court and enforce the jurisdiction of the Singapore court. There are two types of anti-suit injunctions: contractual and non-contractual. Contractual anti-suit injunctions are issued when there is a jurisdiction clause choosing Singapore\'s courts. Non-contractual anti-suit injunctions are issued when there is no jurisdiction clause, but the Singapore court has jurisdiction over the party and the foreign proceedings are vexatious or oppressive. The issuance of non-contractual anti-suit injunctions is rare and requires a strong justification. Andrew Yip (00:00.61) Welcome to our third substantive lecture for the conflict of laws module where we will be covering anti -suit injunctions. Andrew Yip (00:11.97) Now between the institution of proceedings and trial, there is obviously a very long interlocutory stage where parties will get orders against each other, get discovery, subpoena witnesses and so on and so forth, and get various protective injunctions against one another, such as the Mareuva injunction. Another such protective order, which is commonly gotten especially when the party\'s dispute can span more than one jurisdiction is the anti -suit injunction. The anti -suit injunction is essentially an interlocutory injunction preventing the party it is sought against from commencing or continuing proceedings in a court other than the Singapore court elsewhere. So it\'s an injunction to tell another party stop these proceedings in a foreign court, concentrate on the proceedings in the Singapore court. And in a sense, it\'s a way to enforce the Singapore court\'s jurisdiction that it has when it is exercising over parties\' The injunction is not issued against the foreign court, of course, because you can\'t issue injunctions against the organ of a foreign state, but you can issue the injunction against an individual before the foreign court. And the consequence of the recipient of the injunction not obeying the injunction is simply that if he comes back to Singapore, he could be tried for contempt of court. The rationale for the anti -suit injunction is simply the rationale that undergirds the Singapore Court\'s exercise of jurisdiction in the first place. If the Singapore Court has and has decided that it should exercise jurisdiction, it is prima facie in a sense favoring the fact that it is going to resolve parties\' dispute and issue a judgement, and it doesn\'t really want to have its judicial process interfered with potentially because by commencing proceedings other jurisdictions, the defendant before Singapore\'s courts might be trying to frustrate the claimant\'s ability to bring proceedings to an end because maybe he will run out of resources or run out of time to bring the Singapore proceedings to fruition or maybe obtain a foreign judgment which he will try to enforce in Singapore before the Singapore courts have finished trying the dispute. So there are many ways in which starting proceedings outside Singapore may frustrate proceedings in Singapore and where this is Andrew Yip (02:29.52) where this is illegitimate and we will see that it\'s not always the case, but where it\'s illegitimate for a party outside Singapore to bring forward proceedings to undermine Singaporean proceedings, then the Singaporean courts will issue the anti -seal injunction to prohibit this from happening. Andrew Yip (02:46.956) The test to determine whether or not the Singapore Court will issue an anti -suit injunction against an individual commencing or continuing foreign proceedings is typically stated as follows. to the claimant if they are allowed to continue. Fourth, whether or not it would be more unjust for the defendant or unjust for the claimant if the injunction were issued or not issued. And fifth, whether or not the four proceedings which the claimant is seeking an anti -suit injunction to stop are a breach of any jurisdiction agreement that exists between the parties. Andrew Yip (03:42.072) But what\'s all good to call this five factor list a test, it\'s not really a test at all because Singaporean courts don\'t consider these five factors in the round as part of one single inquiry as they might, for example, in the natural forum situation or even the strong cross situation. Rather what? Courts do with these factors is that they go through them sequentially and some are prerequisites, some are more important than others, and some are alternatives. This is all very complicated, so I\'m going to break it down for you into the following steps. First, the first factor in the five, which is whether or not the defendants are amenable to the jurisdiction of Singapore\'s courts, is actually a prerequisite. If the Singapore courts don\'t have jurisdiction over the parties in the first place, don\'t have jurisdiction over the person against whom the anti -suit injunctions being sought, then no injunctions at all, including anti -suit injunctions, can be issued against them. Because injunctions are only issued\... as or typically only issued to protect the jurisdiction of Singapore\'s courts to determine parties\' dispute on the merits. So there must at least be jurisdiction that the Singapore courts have over the defendant whether or not they\'ll exercise it in the first place for them to issue injunctions against it. Now, with the new amendments to the Civil Law Act, Section 410A actually empowers courts to issue freestanding interim injunctions where it\'s just inconvenient to do so even when they don\'t have jurisdiction on the defendant. And this justifies, for example, the issuance of freestanding Marriva injunctions against defendants even if Singapore\'s courts don\'t have jurisdiction to try the defendant. This may or may not have been covered in your civil proceedings lectures. Andrew Yip (05:29.698) Theoretically, you could use this new amendment to the Civil Law Act to justify issuing a free -standing anti -suit injunction as well, in which case jurisdiction would not be a prerequisite to that at all. But Possibility hasn\'t really been mooted in the courts or mooted in Parliament, and so I\'m not really going to cover this in this course. We\'re not going to examine you on this. Just note that this possibility exists out there and that jurisdiction may not always be truly a prerequisite for an anti -suit injunction. But for the purposes of this course, as has always been the case in Singapore law, we\'re going to assume that it is in fact a prerequisite. So that\'s factor A, jurisdiction. What about the other four factors, B to E? So these don\'t actually constitute four other factors that are considered in the round after that. Rather, they constitute two different pathways to getting an anti -suit injunction. Factors B to D, are cumulative requirements of natural forum, taxation and oppression, and no injustice to the defendant or injustice to the claimant constitute a sequence of three requirements before you can get what is called a non -contractual anti -suit injunction. On the other hand, if the defendant is amenable to jurisdiction of the Singapore and the foreign proceedings which are sought to be restrained are in breach of a jurisdiction agreement, i.e. factor E. These two factors alone will justify issuing a contractual anti -suit injunction. So first, after this slide, we\'re going to be talking about contractual anti -suit injunctions first and then non -contractual anti -suit injunctions second. Andrew Yip (07:01.378) The Contractual Antisude Injunction is by far the simpler of the two. When there is a jurisdiction clause choosing Singapore\'s courts, the Singapore court will typically have jurisdiction over parties by virtue of the rules that we discussed in the jurisdiction lecture, and it will simply exercise the jurisdiction over parties as well. Relatedly, it will also typically issue the Antisude Injunction to restrain foreign proceedings brought in breach of that jurisdiction clause, and the justification of this is simply the same justification which underlies the strict enforcement of jurisdiction clauses in general. If parties do agree to Singapore courts hearing the dispute, it is in almost every situation more fair and more just and more in line with parties\' feasible expectations for parties to in fact be forced to litigate in Singapore. And so any attempt by any party to frustrate this by commencing foreign proceedings or continuing foreign proceedings will be prima facie unjust and so Singapore\'s courts will unhesitatingly grant an antitune assumption to restrain such foreign proceedings. Now, we also mentioned in the previous jurisdictional lecture that jurisdiction clauses might choose Singapore or the foreign courts and Singapore\'s courts will typically enforce these clauses regardless of whether or not they point to Singapore or foreign courts. If points to Singapore, Singapore\'s courts will exercise jurisdiction unless there\'s strong courts not to, if it points to the foreign court, Singapore\'s courts will not exercise jurisdiction unless there\'s strong courts to. But when it comes to anti -suit injunctions, however, the jurisdiction clause must choose Singapore\'s courts for the Singapore court to issue the anti -suit injunction against the foreign court. Jurisdiction Clause cannot choose a foreign court, let\'s say the courts of foreign state A, for Singapore courts to issue an attitude of adjunction in relation to proceedings in the courts of foreign state B, to restrain those proceedings in foreign state B in favour of the proceedings in foreign state A. This is what has been termed by the Jurisprudence of Singapore as being an international busybody. If parties choose to breach their jurisdiction clauses, Andrew Yip (09:05.131) In relation to proceedings between two different foreign states, it is not the business of Singapore\'s courts to get involved, even if it has jurisdiction over the party against whom the attisue injunction is sought. Instead, the Singapore courts would typically only issue an attisue injunction to protect its own jurisdiction. However, even though The existence of a Singapore Selecting Jurisdiction Clause generally entitles the claimant to an anti -sue injunction restraining foreign proceedings. In two exceptional situations, the Singapore courts will nevertheless deny the anti -sue injunction. The first situation is when the Singapore court files a strong clause not to enforce the Jurisdiction Clause. If the anti -sue injunction is based on the Jurisdiction Clause, if the Singapore courts won\'t enforce the clause, there is no reason to grant the injunction in the first place. Second, even if there is no strong cause not to enforce the jurisdiction clause and to therefore stay Singapore proceedings, Singapore courts will still deny the claimant an attitude injunction if the claimant unreasonably delayed in applying for the injunction, such that the foreign proceedings which are being sought to be restrained are now at some kind of advanced stage. So the reason for this is that Singapore\'s courts recognize that even a court which is not chosen by parties in the jurisdiction clause has a legitimate interest in not having proceedings before which waste time and expenses, which might be the case if parties are allowed to proceed in the foreign jurisdiction for a very, long time before finally saying, you know what, despite the advanced stage at which foreign proceedings are at, which have involved both parties, I am now going to insist on the jury searching clause selecting Singapore and grant and to seek therefore an anti -suit injunction against the foreign proceedings at this point in time. So this might be the situation for example if the Andrew Yip (10:57.427) There is, I\'m a claimant and there is a Singapore Selecting Jurisdiction Clause between me and the defendant. But the defendant has sought to get a declaration of non -liability against me in Malaysia, for example, and I have acquiesced to the fact that there are Malaysian proceedings and sought to plead my case in Malaysia. But right before trial, perhaps because I suspect that I might lose at trial in Malaysia, I say, look, actually, I want to sue you in Singapore instead because we have a Singapore Jurisdiction Clause and I in getting anti -sue injunction against the Malaysian courts or against the defendant in relation to Malaysian court proceedings. This would be seen as unjust. Injunction, after all, is an equitable remedy, and equitable remedies are generally not granted when the party seeking the remedy has delayed and therefore prejudiced the other party, and in this case, the foreign court as well. So the only situation where there is a delay which does not preclude the applicant from seeking the antisocial injunction is when the delay is due to the applicant\'s objections towards the foreign court\'s jurisdiction. If the foreign proceedings have been going on for very long time, but the only reason why they\'ve been going on for such a long time is because I\'ve genuinely been trying to say to the foreign court, look, I have a Singaporean jurisdiction clause, you should not exercise your jurisdiction and despite all these protestations, the foreign court after a very long time says, okay, I\'ve seen your arguments but I\'m nevertheless going to exercise jurisdiction over your case. If at that point in time, I then come to the Singapore courts and say, grab me at the suit and junction on the basis of this Singapore jurisdiction clause. The delay will not justify the courts not granting me the clause because all I\'ve done is acted in good faith. I\'ve tried to get the foreign courts to stay proceedings on grounds of the Singapore Jurisdiction Clause. They haven\'t done so, so now I\'m to go to the Singapore courts as a last resort to get an anti -suit injunction restraining the foreign proceedings and breach of them. Andrew Yip (12:57.239) We now turn to the other situation in which a court might grant an attitude injunction where there is no jurisdiction clause selecting the Singapore courts or any other courts. We might call this the situation involving the non -contractual attitude injunction. Courts are much more reluctant to grant such injunctions in such circumstances because of the idea of comity. Comity is a shorthand term in the conflict of laws that means respect or deference to the institutions or foreign states. In this case, it refers to the instinct that Singapore\'s courts have not to interfere with foreign proceedings unduly. So generally, All things being equal, the fragmentation of civil proceedings is a bad thing. You duplicate legal resources, you duplicate arguments before the Singapore courts and the foreign courts, you risk conflicting judgements and you risk wasting everybody\'s time if there are two proceedings going on and ultimately you have to find out which of those judgements is going to be enforced in the place where the judgment debtor has assets. Nevertheless, this prima facie, this desire to avoid the fragmentation of proceedings, Singapore\'s courts do not consider parallel proceedings in the foreign state when there is no jurisdiction clause selecting the Singapore courts and a bad thing in and of itself because it is ipso facto legitimate for a foreign court to say, well, I know that the Singapore courts are trying this dispute because Singapore courts have jurisdiction and they decided they won\'t want to exercise jurisdiction. But I, the foreign court, I also have jurisdiction over case and I also think it\'s appropriate for me to exercise jurisdiction so you you think it\'s appropriate for you to try the case you go ahead Singapore court but I\'m the foreign court and I\'m gonna do the same and the Singapore court is not itself that\'s not considered itself well placed to say Andrew Yip (14:44.407) to the foreign court, no, I think because I have jurisdiction and I\'m the natural form, I\'m gonna try it, I don\'t care what you think. The Singapore court is somewhat reluctant to do that because that would go against comity, that would not be showing the appropriate deference and respect to the foreign court. And so generally, where there is no anti -suit injunction, the fact that the Singapore court has jurisdiction and is the natural form will not itself justify issuing an anti -suit injunction to restrain foreign proceedings. Something more is required before the anti -suit injunction will issue. With this in mind, we can say that there are broadly speaking, three requirements that a claimant seeking an anti -suit injunction in circumstances when there is no jurisdiction clause must fulfill in order for the issue of the anti -suit injunction to be consistent with comity. In other words, in order for the Singapore court to be comfortable with issuing this non -contractual anti -suit injunction. First, the Singapore court must have jurisdiction over the party who the attitude of the injunction is sought against. This, as we mentioned, is a prerequisite to the assurance of any attitude of the injunction. Second, the Singapore court must be convinced that it is a natural forum for trial because that\'s the situation if the attitude of injunction is meant to protect the jurisdiction of the Singapore court, the Singapore court must of course be willing to exercise the jurisdiction in the first place if not there will not be trial anyway. But there must be something more as I said in the previous slide and there\'s something more is that it must also be vet -sicious or oppressive for the defendant against whom the injunction is sought to continue those forward proceedings against the claimant in the foreign court. Andrew Yip (16:25.067) There is a fourth maybe requirement of injustice, but this is generally bundled into this vexation or oppressive requirement as well. So we\'re just going to consider them as the same inquiry for the purposes of this course. So three requirements. Jurisdiction over the respondent, Singapore Courts natural form, and it would be vexation or oppressive for the form proceedings to continue against the claimant. Note, additionally, there is also the question of delay, which is relevant here as it is in the context of the contractual anti -suit injunction, which means that even if the claimant can overcome all these three factors, the anti -suit injunction will still not issue if the claimant is unreasonably delayed in seeking the injunction in the same way as we discussed in relation to the contractual anti -suit injunction. Andrew Yip (17:14.145) So the million dollar question when it comes to the issuance of non -contractor anti -suit injunctions is when are fraud proceedings considered to be vexatious or oppressive to the claimant such that they are effectively unconscionable in the court of appeals works in Kirkham and Train which will justify the issuance of the anti -suit injunction. So there are two situations which we broadly take as somewhat definitive of the situations where a Singapore court will issue a non -contractual act to suit injunction because the proceedings are vexatious or oppressive. The first situation is when the fraud proceedings involve oppressive procedures or extreme inconvenience for the claimant. And I think we can see an analogy here between the situation where the fraud proceedings have oppressive procedures or extreme inconvenience for the vexatious and oppressive Inquiry for Antisuite Junctions and the situation where The claimant can say that despite Singapore not being the natural forum in the normal natural forum inquiry, Singapore courts should nevertheless exercise jurisdiction because the claimant would not receive substantial justice in the foreign state. We went through this requirement or this test in the jurisdiction aspect of the course and it\'s worth visiting it now. The point to make, however, is that in this situation, the lack of substantial justice that a claimant will receive in the foreign state is not\... a ground which grants the court jurisdiction despite it not being the natural forum. It is a ground that justifies the court issuing the anti -suit injunction on top of Singapore already being a natural forum. And so this just serves to emphasize how Andrew Yip (18:56.927) rarely a court will issue a non -contractual anti -suit injunction. Not only must Singapore be the natural forum for the dispute, but trial elsewhere must have the potential of being oppressive or extremely inconvenient for the claimant. The second situation, which is similar and overlapping, is the situation where the proceedings in the foreign state, which are sought to be restrained, are commenced in bad faith. I.e. the only reason for the commencement of the foreign proceedings is to frustrate the Singapore You can see an example of this where, as an example of this, situation where the defendant against whom the anti -suggestion is sought has basically no real case in the foreign state. It\'s basically already conceded on the facts and on the law that he should fail. And the only reason why the foreign proceedings are being instituted is to frustrate or to irritate the plaintiff\'s conduct of proceedings in Singapore, where Singapore courts have already found that they have jurisdiction and should exercise jurisdiction. In this situation, the foreign proceedings are merely commenced to frustrate or to irritate the plaintiff and they\'re commenced in bad faith and thus they are vexatious or oppressive for the plaintiff. Outside these two situations, again I will emphasize that the non -contractor attitude injunction is a rare thing. And the reason for this again is that Generally Singapore\'s courts are tolerant of parallel proceedings when all things being equal, both courts have a more or less equal or equivalent claim to saying that they have jurisdiction over the dispute and they should exercise jurisdiction over the dispute. It is only when the formal proceedings are seen as oppressive, seen as unconscionable in some way that the Singapore courts will take an extra step of issuing the attissue injunction in the absence of a jurisdiction clause. Conflict of Laws - Lecture 4: Anti-suit injunctions - A. **[Contractual]** anti-suit injunctions - **[5 -factor test]** - **[Effect]** of ASI - However, despite a Singapore jurisdiction clause, courts may deny the ASI where (Sun Travels): - Sun Travels & Tours Pvt Ltd v Hilton International Manage (Maldives) Pvt Ltd \[2019\] 1 SLR 732 (SGCA), \[64\]- \[87\] - **[ASI cannot be granted where the proceedings have advanced]** - People's Insurance Co Ltd v Akai Pty Ltd \[1997\] 2 SLR(R) 291 (SGHC), \[12\] - **[the Singapore Courts will not intervene if the matter does not concern Singapore Courts]** - B. **[Non-contractual]** anti-suit injunctions (4 Factors + Lakshmi delay) - Two scenarios of **[unconscionability]** - Scenario 1: "oppressive procedures" or "extreme inconvenience" - John Reginald Stott Kirkham v Trane US Inc \[2009\] 4 SLR(R) 428 (SGCA), \[46\]-\[52\] - Scenario 2: bad faith commencing proceedings to frustrate Singapore proceedings - Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra \[2019\] 2 SLR 372 (SGCA), \[88\]-\[97\], \[117\], \[129\], \[131\] - even where the foreign court has declined to stay its proceedings, it would not invariably be a breach of comity for the domestic court to grant an anti-suit injunction if it finds that (a) it is clearly the more appropriate forum for the dispute; and (b) the defendant in the application has acted in a vexatious or oppressive manner in commencing the foreign proceedings