The Proposed Hague Convention on Parallel Proceedings: A Role for Anti-Suit Injunctions?

Given the difficulties that parallel proceedings create in transnational litigation, there have been repeated attempts to design a multilateral framework to resolve them. A new effort at legal reform is currently underway at the Hague Conference on Private International Law, where a working group has published a draft text of a convention on parallel proceedings and related actions. The draft proposes a mechanism to concentrate parallel proceedings in one forum: the “more appropriate forum” for the resolution of the controversy.

The work done on this project to date has focused significant attention on the common-law doctrine of forum non conveniens, a tool of jurisdictional abstention that can be used to reduce the incidence of parallel proceedings. In contrast, it has largely ignored the use of anti-suit injunctions in common law systems.

In a forthcoming article, I argue that an understanding of anti-suit injunctions is important to the development of a successful multilateral convention on parallel proceedings. First, the mechanisms of forum non conveniens and anti-suit injunctions together mark the two ends of the spectrum of concurrent litigation. At one end are cases where a court is so clearly not an appropriate forum that it is willing to abstain from exercising its jurisdiction, even at the risk of denying or limiting the plaintiff’s ability to seek relief. At the other end are cases where a court feels so strongly that it is the appropriate forum that it is willing to enjoin the parties from litigating anywhere else, even at the risk of undermining international comity. Developing an effective method for identifying the more appropriate court in situations of concurrent jurisdiction requires attention to the entire spectrum.

Second, the interests that motivate courts to issue anti-suit injunctions will remain relevant even within a treaty framework. For that reason, it’s important to assess whether and to what extent a multilateral convention would affect their availability.

Background: The Hague Conventions

For nearly 25 years, the Hague Conference has worked to develop a multilateral framework for cross-border civil and commercial litigation. When early negotiations failed to result in an omnibus convention on jurisdiction and the recognition and enforcement of foreign judgments, the Hague Conference scaled back to address narrower issues. That approach yielded the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. In 2021, the Hague Conference established a working group to explore the possibility of a convention on parallel proceedings and related actions.

It is worth noting that the use of anti-suit injunctions is relatively rare in disputes that fall within the scope of the Hague Conventions. Those instruments apply only to ordinary civil and commercial disputes: matters involving insolvency, defamation, privacy, intellectual property, and cross-border competition, among others, are all expressly excluded. Yet it’s in precisely those domains that anti-suit injunctions are most heavily concentrated. For this reason, overall, practice involving anti-suit injunctions is in some respects peripheral to the Conventions’ framework.

Nevertheless, some of the functions that anti-suit injunctions serve are relevant in civil and commercial litigation. For instance, courts often enjoin foreign litigation that is initiated in violation of an exclusive forum-selection clause. In addition, they often enjoin foreign proceedings that threaten to re-litigate a matter already decided by a U.S. court. For that reason, it is still important to deal with the treatment of anti-suit injunctions within the Hague Convention framework.

Treaty Commitments and the Role of Anti-Suit Injunctions

One obvious question with respect to the proposed convention on parallel proceedings is whether it would permit anti-suit injunctions at all. Like the Choice of Court and Judgments Conventions, the proposed instrument does not specifically address this question.

In the article, I distinguish between Chapter II of the working draft, which addresses parallel proceedings, and Chapter III, which addresses merely related proceedings. The central objective of Chapter II is to create a process for the allocation of jurisdictional authority to a single court in cases of concurrent jurisdiction. I argue that to let a court preempt that process by issuing an anti-suit injunction would undermine the Chapter’s key function, and therefore that anti-suit injunctions should generally be prohibited in the case of parallel proceedings. That conclusion would not apply, however, to related actions. Chapter III of the proposed convention does not serve a jurisdiction-allocating function. While it encourages states to decline jurisdiction in deference to a related action underway elsewhere, it does not obligate them to do so. The use of anti-suit injunctions to block related proceedings, then, does not conflict in the same way with Convention objectives.

The Special Case of Abuse of Process

The article also argues that anti-suit injunctions should remain available to block deliberately vexatious or obstructive foreign litigation. Such litigation inflicts harm on other litigants that cannot be remedied even if the other court in question continues to judgment. And in some circumstances, such litigation may actively interfere with another court’s ability to continue to judgment. For these reasons, this is a context in which comity concerns are typically seen to be outweighed by the harm that abuse of process causes.

Conclusion

Anti-suit injunctions deserve a place in the debate over parallel proceedings in transnational litigation. Although multilateral efforts to resolve the problems caused by parallel proceedings have understandably concentrated on jurisdictional abstention doctrines like forum non conveniens, the interests that lead common law courts to enjoin foreign litigation will not disappear simply because a new mechanism exists for allocating jurisdiction. Any effective solution to the problem of concurrent proceedings must therefore reckon with anti-suit injunctions as well as with abstention rules. This does not mean, however, that multilateral instruments must accommodate every use of the anti-suit injunction. As the article suggests, many of the functions anti-suit injunctions serve can be incorporated into a multilateral framework rather than left to unilateral judicial action.