In Sodzawiczny v Smith,1 Foxton J provided important guidance on when an anti-arbitration injunction (“AAI”) will be granted. It has been said that AAIs “will be granted somewhat more readily [than anti-suit injunctions], as no question of interference with a foreign court is involved”.2 But this only covers circumstances where AAIs are granted to protect a legal right not to have to arbitrate. AAIs may also be granted to prevent the fragmentation of disputes or parties from pursuing claims in arbitration which have previously failed and amount to an impermissible challenge of a court order enforcing the award. In those situations, there is a real risk of trespassing on the tribunal’s jurisdiction to determine its own jurisdiction.

Courts enjoy greater flexibility when deciding whether to grant AAIs than they do when considering stay applications under s.9 of the Arbitration Act 1996 (“AA 1996”): when the dispute is “in respect of a matter which under the agreement is to be referred to arbitration” (“an Arbitral Matter”) the Court has to order a stay to arbitration. Although it has recently been suggested that a stay might be refused where there is no “real or proper purpose” in seeking it,3 even if the requirements for a mandatory stay under s.9 are satisfied, this “represents a … controversial development in English arbitration law”.4 It is suggested that Foxton J was right to be cautious about the possibility of refusing a stay on such a basis and sensibly endorsed the view that, if the court were required to grant a stay, then no AAI should be granted. Only in exceptional circumstances, where the court and tribunal have overlapping jurisdiction, and the claim is in substance an impermissible challenge to court judgments, may AAIs be granted, as happened in Sodzawiczny v Smith.