A Primer on Antisuit Injunctions

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The antisuit injunction, which blocks a party from initiating or pursuing litigation in a foreign court, is a powerful tool in the judicial arsenal. Courts issue these injunctions, under appropriate circumstances, to prevent the development of parallel proceedings. They can also be used to prevent a party from taking action in a foreign forum intended to interfere with litigation underway in the enjoining court or to evade that court’s jurisdiction.

There is reason for courts to be cautious in issuing antisuit injunctions. First, as a general matter, U.S. law tolerates parallel proceedings despite the cost and inconvenience of duplicative litigation and the risk of inconsistent judgments. In its influential ruling in Laker Airways v. Sabena (1984), the D.C. Circuit stated that “the fundamental corollary to concurrent jurisdiction must ordinarily be respected: parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other.”

Second, although antisuit injunctions are directed at parties, their effect is to interfere with the exercise of judicial authority in another country. As a result, they raise significant comity concerns. For these reasons antisuit injunctions are frequently described as exceptional measures, to be used sparingly. In some litigation contexts, however, courts issue them routinely.

This primer outlines (1) the threshold factors for obtaining an antisuit injunction; (2) the two competing approaches to antisuit injunctions followed by the federal courts; (3) the factors courts typically consider in making that decision; (4) the use of antisuit injunctions to enforce contractual forum-selection and arbitration agreements; (5) the role of antisuit injunctions in bankruptcy proceedings; and (6) the distinct but related concept of anti-enforcement injunctions.

The primer focuses on federal practice. State courts also issue international antisuit injunctions, following approaches roughly similar to those at the federal level.

Threshold Factors for Obtaining an Antisuit Injunction

Because an antisuit injunction operates in personam, the issuing court must have personal jurisdiction over the party to be enjoined. In addition, movants must establish two additional “gatekeeping” elements. First, the parties in the U.S. and foreign proceedings must be the same. Courts do not typically insist on perfect identity of the parties; it is enough that the parties in interest are the same. Second, the issues at stake must be substantially the same, such that the outcome of the U.S. proceeding would dispose of the foreign proceeding.

There is no consensus on whether parties seeking an antisuit injunction must also satisfy the traditional requirements for injunctive relief: a showing that without an injunction they will suffer imminent harm and that the balance of hardships between the parties weighs in their favor. The First, Third, Fifth, and Ninth Circuits have held explicitly that the suitability of antisuit injunctions depends on different factors than those relevant to other forms of injunctive relief. In these circuits, movants are not required separately to meet the traditional test for obtaining injunctive relief.

Competing Approaches to Antisuit Injunctions

There is a long-standing split among the federal circuits regarding the standard to be applied when considering antisuit injunctions. The Second, Third, Sixth, Eighth, and D.C. Circuits follow a restrictive approach that places significant emphasis on international comity. These courts adhere relatively strictly to the principle that parallel proceedings are generally tolerated, and therefore assign little weight to the inconvenience and inefficiency that duplicative litigation often creates. Rather, they reserve antisuit injunctions for circumstances in which foreign proceedings (a) directly threaten the jurisdiction of a U.S. court or (b) would violate an important U.S. public policy. The First Circuit has adopted a somewhat more flexible version of the restrictive approach under which these two justifications are not necessarily exclusive.

The Fifth, Seventh, and Ninth Circuits follow a more liberal approach. Under this approach, foreign proceedings may be enjoined if they are likely to “frustrate and delay the speedy and efficient determination” of the U.S. suit or otherwise would result in inequitable hardship. In other words, unlike the restrictive approach, this approach does not preclude the issuance of antisuit injunctions to block “merely” parallel proceedings. While comity does figure in the analysis, it is often given little weight. The inconvenience and expense of duplicative litigation, along with the risk of inconsistent judgments, may be enough to justify an antisuit injunction in these circuits.

Relevant Factors

Despite the circuit split described above, there is significant consensus among the federal courts regarding the circumstances in which antisuit injunctions are appropriate. Under both approaches, the following factors are particularly relevant.

(1) Timing of application for relief

On the one hand, courts generally decline to issue antisuit injunctions preemptively, in response to litigation that is merely threatened or anticipated in another forum. On the other hand, they may also decline to issue an injunction if the movant has, without reason, delayed its application for relief, such that significant resources have already been invested in the foreign proceeding.

Consistent with the general tolerance of parallel proceedings under U.S. law, the order in which proceedings are filed is not typically a dispositive factor.

(2) Vexatious litigation

To some degree, parallel litigation can be described as inherently vexatious: it creates inconvenience, added expense, the burden of litigating in a potentially inconvenient forum, and so forth. Courts following the liberal approach sometimes issue antisuit injunctions on that basis alone.

Vexatiousness can also manifest in more specific ways. First, particular aspects of a foreign proceeding may impose disproportionate and inequitable personal hardship on an individual litigant. Second, the initiation of a foreign proceeding may be viewed as a bad-faith effort to delay or evade the consequences of U.S. litigation—as in the case of proceedings initiated after judgment has been entered in a U.S. case. Third, many courts have concluded that filing a suit in violation of a contractual forum-selection or arbitration agreement is presumptively vexatious. These forms of vexatiousness are relevant to analysis under both the liberal and the restrictive approaches.

(3) Interdictory proceedings

A foreign proceeding is considered “interdictory,” rather than merely parallel, if it aims to preclude or interfere with the adjudication of a claim in U.S. court. One example of an interdictory order is a foreign antisuit injunction that seeks to block litigation in the United States. The seminal Laker Airways case, for instance, addressed an order issued by an English court prohibiting parties from litigating U.S. antitrust claims in the United States. Foreign proceedings initiated in order to block pre-trial discovery are likewise interdictory, in that they seek to impede the production of evidence necessary to U.S. litigation.

Under both the liberal and the restrictive approaches, U.S. courts are willing to enjoin interdictory foreign proceedings, characterizing them as incompatible with international comity.

Enforcing Forum-Selection and Arbitration Agreements

One of the most common uses of antisuit injunctions is to enforce contractual obligations to litigate in a specific forum—and in this context, the circuit split described above is virtually irrelevant. Allowing a party to litigate abroad in violation of an exclusive forum-selection clause would undermine the strong public policy in the United States favoring enforcement of such clauses. Where the enjoining court is itself the selected forum, the foreign proceeding would also directly threaten that court’s jurisdiction. As a result, even courts following the restrictive approach routinely hold that antisuit injunctions may be issued to enforce such clauses.

Courts also frequently enjoin parties from pursuing foreign litigation in violation of an agreement to arbitrate. In this context, foreign litigation does not directly threaten the jurisdiction of the enjoining court. However, it does undermine the strong federal policy in favor of arbitration enshrined in the Federal Arbitration Act.

Insolvency and Other In Rem Contexts

When a U.S. court’s jurisdiction over a matter is in rem or quasi in rem, parallel proceedings present a particular risk: the foreign court might order property located in the United States to be transferred elsewhere, thereby divesting the U.S. court of jurisdiction. Even under the restrictive approach, this is a type of threat to jurisdiction that may justify an antisuit injunction. Some courts have gone further, stating that “a long-standing exception to the usual rule tolerating concurrent proceedings has been recognized for proceedings in rem or quasi in rem.”

Antisuit injunctions are an important tool for U.S. bankruptcy courts, which exercise jurisdiction over all of a debtor’s property, wherever located. Under Section 362 of the U.S. Bankruptcy Code, the filing of a bankruptcy petition triggers an automatic stay blocking actions against the debtor or the estate. Foreign proceedings initiated in violation of the stay threaten the court’s ability to secure a coordinated and collective resolution of the insolvency. Similarly, once a U.S. bankruptcy court has confirmed a plan for a debtor’s reorganization, foreign actions may threaten the successful implementation of that plan. In such circumstances, bankruptcy courts may issue antisuit injunctions to block such proceedings. Although comity remains a consideration in this context, bankruptcy courts often find that their need to preserve the estate and maintain control over the bankruptcy administration outweighs comity concerns.

Anti-Enforcement Injunctions

Whereas an antisuit injunction prevents a party from initiating or continuing litigation in a foreign forum, an anti-enforcement injunction prevents a party from taking steps to enforce a foreign judgment. Because anti-enforcement injunctions come into play only after a foreign judgment has been rendered, they raise concerns above and beyond those relevant to antisuit injunctions. First, they undermine the policy in favor of res judicata. Second, by seeking to frustrate the implementation of another court’s judgment, they present particularly serious comity concerns.

In certain situations, courts have nevertheless found it necessary to issue anti-enforcement orders. In one recent case, a federal district court addressed two justifications for such an order. In that case, the judgment creditor’s enforcement efforts appeared to be part of a vexatious campaign to leverage an exorbitant foreign penalty award into a settlement. In addition, the judgment was procured in violation of an exclusive forum-selection clause. Anti-enforcement orders are likely to remain exceptional in light of their significant implications for international comity.