New Essay on Anti-Enforcement Injunctions

In a symposium issue honoring Linda Silberman, the NYU Journal of International Law and Politics has just published an essay that Ralf Michaels and I wrote on anti-enforcement injunctions. In the United States, the best-known example of this type of order is the one entered by the Southern District of New York in the infamous Chevron Ecuador litigation—a worldwide anti-enforcement injunction ordering the successful plaintiffs not to take steps to enforce their Ecuadorian judgment against Chevron. (That injunction was subsequently vacated by the Second Circuit, which was concerned in part about the comity implications of a U.S. court seeking to block enforcement actions in other countries.)

Although they’re not common, anti-enforcement injunctions are used both in the United States and in other legal systems—including in some civil law systems, despite their general aversion to anti-suit injunctions. This essay explores where they fit in the procedural landscape. On the one hand, they are simply a type of anti-suit injunction. But the fact that they come so late in the litigation process—after the foreign litigation has reached judgment—raises special problems. First, at that point the policy of res judicata comes into play. Second, they present particularly serious comity concerns, since blocking enforcement would mean a complete waste of the rendering court’s resources. On the other hand, these injunctions also relate to the law on recognition and enforcement of foreign judgments. Here, the argument would be that they come too early in the process. To enter an anti-enforcement injunction is to preempt the normal application of the law on recognition, which would outline specific defenses that a judgment debtor could raise to resist the recognition and enforcement of the relevant judgment. In rare cases, though, they help courts address certain enforcement-stage conflicts that can arise in transnational litigation.

Here is the abstract:

The anti-enforcement injunction—a court order enjoining a party from taking steps to enforce a foreign judgment or an arbitral award—is an extraordinary form of equitable relief. It undermines the strong and essentially universal policy in favor of res judicata; in addition, it interferes significantly with foreign legal systems, particularly when it seeks to block enforcement efforts worldwide, as in the notorious Chevron Ecuador litigation. Nonetheless, while rare, it is recognized both in the United States and in other legal systems, and in some cases can serve important goals. In this essay, we situate anti-enforcement injunctions within the framework of procedural law, considering their interaction with the rules on recognition and enforcement of foreign judgments and the rules governing the broader category of anti-suit injunctions. We then examine the criteria that inform their availability, concluding that such injunctions, while they must remain an exceptional remedy, are an important tool for courts to use in addressing various enforcement-stage conflicts that can arise in transnational litigation.