Lloyd's Maritime and Commercial Law Quarterly
ANTI-SUIT INJUNCTIONS—A HOME COMFORT?
Jonathan Harris*
Writing in this Quarterly,1
Adrian Briggs has expressed the view that the Court of Appeal’s decision in Airbus Industries G.I.E. v. Patel2
implicitly raises an issue which has hitherto been overlooked: namely that, when a plaintiff seeks to obtain the remedy of an anti-suit injunction to restrain proceedings in a foreign court, there must logically be a substantive right which determines his entitlement thereto. It has always been assumed that the existence and nature of that right should be determined exclusively by English domestic law.3 Rather, he argues, it should be seen to raise a choice of law issue and, where equitable rights are concerned, the law of the country with which the dispute has its closest and most real connection should be applied. This piece seeks to show that this view is based on mistaken assumptions as to the nature of the remedy and would lead to disharmony in the conflict of laws.
At first sight, Briggs’ views have an obvious appeal. In a case such as Airbus
4 it is not obvious that the decision to restrain the foreign proceedings, when England is on no reasonable view the natural forum, should be determined by whether the proceedings are vexatious or oppressive in the eyes of English domestic law. Ought not there to be a choice of law issue governing the right? Moreover, since English law does adopt a choice of law rule to determine a plaintiff’s legal right not to be sued, why not also for his equitable
* Lecturer in Law, University of Birmingham. I would like to acknowledge with thanks the help of Adrian Briggs, who, while disagreeing with the views in this article, was nonetheless willing and able to offer many constructive comments on an earlier draft.
1. Briggs, “The Unrestrained Reach of an Anti-Suit Injunction: A Pause for Thought” [1997] LMCLQ 90.
2. [1996] The Times, 12 August (C.A.: Nourse, Hobhouse and Aldous, L.JJ.); noted Fentiman, “Antisuit Injunctions and the Appropriate Forum” (1997) 56 C.L.J. 46.
3. “The English … court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be oppressive or vexatious. This presupposes that, as a general rule, the English … court must conclude that it provides the natural forum for the trial of the action; and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him”: Société Nationale Industrielle Aerospatiele v. Lee Kui Jak [1987] A.C. 871, 896, per Lord Goff.
4. The facts are fully detailed by Briggs [1997] LMCLQ 90, 90–91. In short, there was an accident at Bangalore airport involving an Indian operating airline and mostly Indian residents and nationals (although the respondents in this case were British nationals visiting Indian relatives). The plaintiffs commenced proceedings in India, but later decided to pursue the manufacturer of the aircraft, Airbus (a French corporation), in Texas. Since the jurisdictional rules were very wide in Texas, and since there was no jurisdictional relief available there, it sought and obtained an injunction in the Bangalore Civil Court. As some of the plaintiffs were not present in India, but were present in England, an injunction was sought against them here.
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