Anti-Suit Injunctions

AuthorStephen G.A. Pitel; Nicholas S. Rafferty
Pages145-161
CHAPTER
7
ANTI-SUIT
INJUNCTIONS
A.
INTRODUCTION
In
Amchem
Products
Inc
v
British
Columbia
(Workers
Compensation
Board)
/
Sopinka
J
noted
that
the
courts
had
developed
two
remedies
to
control
the
choice
of
forum
by
the
parties.
The
first
remedy
is
a
stay
of
the
local
proceedings
on
the
ground
of
forum
non
conveniens.
1
2
The
second
rem
edy
is
an
anti-suit
injunction
from
the
local
courts
which
purports
to
restrain
proceedings
launched
or
threatened
abroad.
Justice
Sopinka
de
scribed
such
an
injunction
as
a
more
aggressive
remedy,
which
[might]
be
granted
by
the
domestic
court
at
the
request
of
a
defendant
or
de
fendants
...
in
a
foreign
suit.
3
He
continued:
In
the
usual
situation
the
plaintiff
in
the
domestic
court
moves
to
re
strain
the
defendant
or
defendants
from
launching
or
continuing
a
proceeding
in
the
courts
of
another
jurisdiction.
Occasionally
..
.
the
defendants
in
a
foreign
jurisdiction
who
allege
that
the
plaintiff
in
that
jurisdiction
has
selected
an
inappropriate
forum
seek
an
injunction
from
the
courts
of
the
alleged
appropriate
forum,
in
which
no
proceed
ing
is
pending,
to
restrain
continuation
of
the
foreign
proceedings.
4
1
[1993]
1
SCR
897
[Amchem],
2
See
Chapter
6.
3
Amchem,
above
note
1
at
912.
4
Ibid
at
912-13.
145
146
CONFLICT
OF
LAWS
Justice
Sopinka
emphasized
that
the
injunction
did
not
operate
direct
ly
on
the
foreign
court
but
rather
in
personam
on
the
foreign
plaintiff.
It
was,
therefore,
essential
that
the
foreign
plaintiff
be
subject
to
the
jurisdiction
of
the
issuing
court.
3
Despite
the
fact
that
the
injunction
was
not
directed
at
the
foreign
court,
it
did
constitute
an
indirect
attack
on
the
foreign
proceedings
and,
therefore,
its
issuance
raise[d]
serious
issues
of
comity.
5
6
Justice
Sopinka
said
that
a
case
could
be
made
for
the
view
that
anti-suit
injunctions
should
be
restricted
to
those
situa
tions
in
which
it
was
necessary
to
protect
the
jurisdiction
of
the
issuing
court
or
to
prevent
the
evasion
of
some
important
public
policy.
7
In
his
view,
a
court
should
entertain
an
application
for
an
anti-suit
injunction
only
where
a
serious
injustice
[would]
be
occasioned
as
the
result
of
the
failure
of
a
foreign
court
to
decline
jurisdiction.
8
The
question
of
whether
to
issue
an
anti-suit
injunction
typically
arises
in
what
are
described
as
alternative
forum
cases.
In
these
cases,
a
choice
has
to
be
made
between
the
domestic
forum,
which
is
alleged
to
be
the
natural
forum
for
the
action,
and
the
proposed
foreign
forum.
Occasionally,
however,
the
question
of
whether
to
grant
an
injunction
may
arise
in
a
single
forum
case
in
which
an
attempt
is
made
to
re
strain
a
party
from
proceeding
in
a
foreign
court
which
alone
has
juris
diction
over
the
relevant
dispute.
9
In
such
cases,
the
English
courts
have
indicated
that
the
relevant
question
to
be
addressed
is
whether,
in
all
the
circumstances,
the
foreign
proceedings
are
unconscionable
and
unjust.
10
In
Airbus
Industrie
GIE
v
Patel,
11
Lord
Goff
suggested
that,
as
a
gen
eral
rule,
before
an
anti-suit
injunction
could
properly
be
granted,
com
ity
required
that
the
domestic
forum
have
a
sufficient
interest
in
the
matter
so
as
to
justify
the
indirect
interference
with
the
foreign
court.
In
an
alternative
forum
case,
that
interest
was
provided
by
the
fact
that
5
In
Hudon
v
Geos
Language
Corp
(1997),
34
OR
(3d)
14
(Div
Ct)
[Hudon],
which
is
discussed
in
detail
below
in
Section
C(l),
the
jurisdiction
of
the
Ontario
court
to
issue
an
injunction
seems
to
have
been
based
solely
on
the
foreign
plaintiffs
par
ticipation
in
the
domestic
litigation
because
it
was
a
Japanese
corporation
with
no
obvious
presence
in
Ontario.
6
Amchem,
above
note
1
at
913.
7
Ibid
at
914.
8
Ibid.
9
Airbus
Industrie
GIE
v
Patel,
[1998]
2
All
ER
257
at
265
(HL),
Lord
Goff
[Airbus].
See
Lawrence
Collins,
ed,
Dicey,
Morris
and
Collins
on
the
Conflict
of
Laws,
14th
ed
(London:
Sweet
&
Maxwell,
2006)
at
para
12-077.
10
See,
generally,
British
Airways
Board
v
Laker
Airways
Ltd,
[1985]
AC
58
(HL);
Midland
Bank
Pic
v
Laker
Airways
Ltd,
[1986]
QB
689
(CA).
11
Above
note
9.

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