Anti-suit injunctions in transnational litigation. is their usage still justifiable?

Abstract

In the game of "multi-dimensional chess‟ that international litigation can become, the usefulness of the anti-suit injunction as an "antidote to jurisdictional shenanigans is second to none.‟ However, as with all "miracle cures‟, this remedy comes at a dear price. The anti-suit injunction has been contested by many for being incompatible with principles of public international law and international comity on the ground that it interferes with the sovereignty of a foreign court. The anti-suit Injunction is a creature of common law, and as such is virtually unknown amongst civil law jurisdictions. Yet, it appears that authors from the civilian school of thought are equally enthusiastic to share their views on such remedy. Everyone, it seems, wants to be part of the ever more lively debate on anti-suit injunctions. The different perspectives which emerge from the on-going saga of anti-suit injunctions are not only relevant to ascertain the role of anti-suit injunctions in transnational litigation, but also shed light on the intrinsic differences that exist between these different legal families. Discussions on anti-suit injunctions were vigorously re-ignited after Turner v Grovit, where the CJEU unveiled for the first time its position on the availability of anti-suit injunctions in Europe. From Turner v Grovit onwards, the controversies revolving around anti-suit injunctions acquired a European dimension. This made the debate, perhaps, even more interesting. More recently, the issue which was of paramount importance was whether in the light of the arbitration exception in the Brussels I Regulation, anti–suit injunctions could be permitted to be granted to restrain proceedings brought before another Member State‟s court in breach of an arbitration agreement. Much to the dismay of the supporters of anti-suit injunctions, the CJEU answered such question in the negative in The Front Comor. Any hope that this common law remedy could ever survive in the European IV judicial sphere was thereby shattered. However, there may now be a twist in the tale of anti-suit injunctions in Europe which comes as a consequence to Recital 12 of the new Brussels I (Recast) Regulation. It is, in fact, a matter of time until the CJEU revisits its stance on the issue of anti-suit injunctions. This thesis will outline the conceptual foundations of the remedy and the arguments in favour and against its usage. This thesis also aims at predicting the future of anti-suit injunctions in the European Union in the light of the latest developments in the European judicial sphere. Finally, this thesis will attempt to explore any legal basis for the grant of an anti-suit injunction or a similar order under Maltese law.