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Law pertaining to anti-suit injunctions in India

Law suits are anyway difficult – but what if the other party files a parallel case in another country, in another court of law? Imagine that you have filed a case against a party in Mumbai, but suddenly the other party also files a case against you in the same matter in a London court. Imagine the logistical nightmare it can be, if you are required to defend or fight the same case in multiple jurisdictions.

In international transactions, there is an obvious incentive for the defaulting party to deliberately initiate parallel legal proceedings in multiple courts (across different countries) in an attempt to delay or frustrate resolution of disputes. How do you prevent this situation from arising in your dispute?

An anti-suit injunction (together with effective drafting techniques) can be a very useful tool here. An anti-suit injunction prevents the parties to a case from filing proceedings in others courts or tribunals, usually in other countries. It helps to get such an injunction if you want to restrain another party (or potential party) from continuing or commencing a suit in another court.


1. Example of how an anti-suit injunction works

Assume that a tech company based in the US (USCo) enters into a distribution contract with
an Indian startup (IndCo) to distribute its products in all of South Asia. The contract should specify which courts will have jurisdiction over disputes that arise between the parties. Not specifying which courts have jurisdiction could be extremely risky – since litigation over a dispute in relation to this contract could potentially be initiated in US, India or even in the South Asian country (if the dispute arises from an action taken there). Therefore, in the event of a dispute, USCo may be able to initiate legal proceedings in, say Singapore (if an action resulting in the dispute was taken there), US or in India. While USCo would prefer courts which are most likely to grant relief (ideally in the US), IndCo may prefer Indian courts to have jurisdiction. Both entities could file litigations against each other in all three jurisdictions, leading to a mess.

Let’s say the contract contained a jurisdiction clause requiring all disputes to be settled in Singapore courts. Depending on the circumstances, IndCo could still prefer filing a case in Indian courts, or even in US courts (if it believes US courts are more likely to grant relief) despite the contract stating to the contrary. In such cases, USCo could file an anti-suit injunction in an Indian court, requesting the court to prohibit IndCo from pursuing legal proceedings with respect to the dispute in India or in the US (as the Indian court has personal jurisdiction over IndCo). 

2. Types of jurisdiction clauses in contracts and when to use anti-suit injunctions

Most modern contracts contain a jurisdiction clause, empowering the courts of a particular country to decide disputes. What happens when parties include a jurisdiction clause? Let’s assume that the parties intend to expressly specify under the contract the courts which will have jurisdiction over disputes arising from the contract. They could specify, for example, that Indian courts, US courts or the courts of a third ‘neutral’ country (e.g. United Kingdom) would resolve any disputes related to the contract. The contract may specify whether such courts have exclusive jurisdiction or whether the jurisdiction is non-exclusive.


Example 1: consider the following clause:
“All disputes arising in relation to this contract shall be subject to the non-exclusive jurisdiction of courts in England.”
Although the above clause confers jurisdiction on English courts, it does not contain wording that expresses the intention of parties to take away the jurisdiction of courts in other countries, e.g. in India or in the US. Such a clause can be dangerous. Say, USCo wants to approach an English Court in relation to a dispute arising out of an action taken by IndCo in India pursuant to the contract. In this situation, IndCo may attempt to approach an Indian court for an anti-suit injunction. It may not want the matter to be decided by English courts for various reasons –it may add to its costs, it may have a higher likelihood of an adverse judgment, or it may not want a quicker resolution of the dispute by a foreign court (if IndCo knows that it is the defaulting party), etc. If the anti-suit injunction is granted, USCo will only be able to resolve the dispute in Indian Courts.



Consider the following situation and test your skills by answering the questions that follow:


Consider the following clause:

“All disputes arising in relation to this contract shall be subject to the exclusive jurisdiction of the Courts in Australia.”

The above clause clearly expresses that parties can only approach courts in Australia in the event of a dispute. In light of the example of USCo and IndCo in the previous section, let us discuss following two situations:





Note: In both situations, it is essential that the court which is approached for issuing an anti-suit injunction has ‘personal jurisdiction’ over the defendant – i.e. if it is an Indian court, the defendant must be an Indian, or it must reside in India (or operate a business there) or it should have done something in India owing to which the Indian court can exercise jurisdiction over the foreigner. A neutral court in a ‘foreign country’, even if it is chosen by parties, e.g. an Australian court cannot issue an anti-suit injunction.


3. Principles under Indian law for grant of anti-suit injunctions

In general, courts are cautious while granting anti-suit injunctions.

As explained before, an anti-suit injunction can only be granted against a person over whom a court has personal jurisdiction.

Secondly, since an anti-suit injunction issued by a court of one country has the risk of excluding the jurisdiction of another court (which may be competent to try cases in another country), the power to issue anti-suit injunctions is used very sparingly and keeping in mind the principle of comity which governs the relationship of courts in different countries.Mutual respect for other courts in other countries in which the commencement or continuance of action/proceeding may be sought.

Thirdly, an anti-suit injunction can only be granted when refusal of the injunction will lead to denial of justice and perpetuation of injustice (which is a vague condition, and subject to interpretation by courts).

Both, the second and third criteria are very wide and provide the court a very broad discretion. For example, when should a court form an opinion that refusal of injunction can lead to injustice? In this light, the following rules are relevant (Refer Supreme Court in the case of Modi Entertainment Network and Anr. v. W.S.G. Cricket Pvt. Ltd.)

In a case where an action can be filed in courts or tribunals of multiple countries, a court will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a court which is not convenient for the parties (forum non-conveniens)


Before granting anti-suit injunctions, the court must bear in mind that that the Indian proceedings or foreign proceedings must be “oppressive and vexatious” and should cause inequitable hardship in order to merit the granting of an anti-suit injunction. “Vexatious” is defined as “one being instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant” and “oppressive” is defined as “unjustly inflicting hardship and constraint”.

  • If a clause provides for jurisdiction of the courts of a particular country, Indian courts will usually respect the choice of parties (even if the clause provides for non-exclusive jurisdiction of such a court). E.g. If a contract provides for non-exclusive jurisdiction of courts in London, the Bombay High Court will not ordinarily issue an anti-suit injunction preventing a party from approaching courts in London or from continuing legal proceedings there.
  • However, under exceptional circumstances, courts may disregard the choice of parties specified under the contract. It will be easier for courts to disregard the choice of parties when the contract specifies non-exclusive jurisdiction of courts of a particular country. Such exceptional circumstances could include situations which permit a contracting party to be relieved of the burden of the contract or subsequent events rendering it impossible for a party to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a force majeure.
  • The court will not grant an anti-suit injunction if it will deprive the defendant of any advantages available to it in a foreign forum which of which it would be unjust to deprive him.

4. Anti-suit injunctions in context of international arbitrations

Where a contract provides for an arbitration clause, an anti-suit injunction could be used in two ways:

1.It could be used to prevent litigation before courts in other countries. In this way, the anti-suit injunction helps in furthering arbitration proceedings as per the contract between the parties.


Let’s take an example. In case of a dispute, a defaulting party may have an incentive to approach courts of other jurisdictions (other than the jurisdiction chosen by the parties) to try and circumvent the arbitration proceedings. For example, a US entity could approach the courts of Singapore in a dispute with an Indian entity, although their contract expressly provides for dispute resolution by arbitration in UK. Since the law in different countries will differ, it will be extremely difficult for the Indian entity to defend its case in each jurisdiction, based on the law of that state. Instead, the Indian entity could apply for an anti-suit injunction before an Indian court – the court would be requested to prevent the US entity from initiating legal proceedings in other countries and to approach the arbitral tribunal, thus saving the arbitration.  




2. It could be used to stop the arbitration itself and to get the dispute decided by a court in a country different from that of the arbitral tribunal. In this case, it would be used to defeat the arbitration.

Courts are extremely unlikely to issue anti-suit injunctions against the arbitration proceedings. Arbitration clauses in contracts usually contain strict rules for jurisdiction in case of disputes and the venue (including the courts which parties may approach for necessary intervention in arbitration proceedings) and the legal system applicable to the dispute are carefully chosen by the parties after application of mind. Further, arbitral tribunals also have the authority to decide their jurisdiction and competence over a particular dispute. Hence, in case there is a challenge to the jurisdiction of an arbitral tribunal, courts will not ordinarily entertain the challenge, and leave the matter to the arbitral tribunal to decide.


Note that under Indian law, opportunity for granting anti-suit injunction in such cases is not completely ruled out, and anti-suit injunctions may be granted to avoid patent injustice (what amounts to patent injustice would depend on the subjective interpretation of a court).



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