Anti-Suit Injunctions

• Author: Jeffrey Berryman
• Pages: 171-183

171

CHA PTER 6

anTi-suiT

inJuncTions

A. INT RODUCTION

At the outer extreme of judicial innovation in the f‌ield of interlocu-

tory injunctions has been t he anti-suit injunction. This injunction is

designed to prevent a plaintiff f rom bringing a suit in another country.

It is the product of globalized litigation and the fact t hat in many dis-

putes there exists a potential for liability against numerous defendants

in a number of jurisdictions. The usual legal mechanism for resolv-

ing these jurisdictional problems lies in the area of conf‌l ict of laws

and the doctrine of forum non conveniens. However, many jurisd ictions,

notably many European civil law countries and, for a while, Texas, do

not follow similar conf‌lict rules. Plaintiffs have been draw n to these

jurisdictions in the belief, often justif‌ied, that they w ill receive some

procedural advantage (e.g., access to jury trial, different forms of proof

such as strict liabil ity rather than negligence, advant age of a contingent

fee structure) — or that because of the gre ater availability of punitive

damages, the compensat ion granted will be signif‌icantly higher than

if they had continued to proceed in a more natura l forum. In response,

defendants have sought an anti-suit injunction, ordering t he plaintiff

to discontinue its suit in the foreign jurisdiction. For a court, adjudicat-

ing on such an issue is ext remely problematic. At one level it appears as

if the domestic court is being a sked to pass judgment upon the capacity

of a foreign court to administer justice. Thi s issue transcend s the liti-

gants and raise s questions concerning comity between n ational courts.