GRANT OF ANTI-SUIT INJUNCTIONS IN INTERNATIONAL

COMMERCIAL ARBITRATION BY ARBITRAL TRIBUNAL SEATED IN

INDIA1

1. Introduction

The concept of anti-suit injunction is not new in law. It is an age old provision in a number of
States. It serves the function of prohibiting a party from taking resort to another jurisdiction
before or after commencement of case in one jurisdiction. 2 Anti-suit injunctions also aid
enforcement of exclusive jurisdiction clause and prevention of forum shopping. Usually,
applications for anti-suit injunctions typically arise where a party takes a case which is perceived
to be in breach of an exclusive jurisdiction clause. In Indian domestic law, anti-suit injunction
can flow only from a higher court against a lower authority in the form of court or tribunal. For
example, in order to restrain a party from moving court an application for grant of anti-suit
injunction is filed in the High Court which decides the appropriate forum for adjudication while
granting an anti-suit injunction.

However, such injunctions have more significance in transnational disputes where parties from
more than one country are concerned. In such cases the parties may do forum shopping and
choose court established in their country without paying much heed to the most appropriate
manner. The other party in such disputes tends to seek anti-suit injunction which restrains the
other party from approaching court in his own country. This trend is new and has seen rise only
in the last few decades. The anti-suit injunctions are thus necessarily used in preventing parallel
proceedings.

Generally, when arbitration proceedings have commenced and another party attempts to initiate
legal proceedings in domestic courts, the Claimant approaches the higher court and seek an anti-
suit injunction. Such cases create no controversy since the higher courts are very well in power
to do so. But what happens in cases where the arbitral tribunal itself imposes restraint on the
party to the dispute to approach courts is what is not currently well settled. This is because a

1
The paper is authored by Vaibhav Sharma, a Vth Semester student of S.S. Jain Subodh Law College.
2
Arthur Cox, A First in Ireland: Anti-suit Injunction, Litigation and Dispute Resolution (November 2017)
http://www.arthurcox.com/wp-content/uploads/2017/11/Anti-suit-Injunction-Article-final.pdf
number of factors affect the determination of tribunal’s power. Legal position in India in
reference to this issue is discussed hereafter.

2. Whether an arbitral tribunal seated in India has the power to grant anti-suit
injunction restraining a party from approaching domestic courts?

Existence of arbitral tribunal is based above a mere contractual document. While indeed the
arbitration agreement forms its roots, its working is affected by national and international laws,
arbitration rules and parties’ undertakings. To determine whether the tribunal has the power or
not to grant such an injunction has to be determined by checking all such levels.

One view advocating that tribunal has the power says that grant of an anti-suit injunction by the
arbitral tribunal would have nothing more than an order compelling the parties to fulfill their
contractual obligations decided by mutual consent. At the same time, courts are prohibited from
hearing such disputes and are required to refer parties to arbitration vide Article 8 (1) 3 of the
UNCITRAL Model Law and Article II (3)4 of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York, 1958).

As the parties’ consent to arbitrate, the arbitration agreement “obliges the parties to honour this
commitment and provides the basis for the jurisdiction of the Arbitral Tribunal” 5. While agreeing
to exclusive arbitration, parties agree not to seek recourse from domestic courts, and so should
restrict the resolution of any disputes to arbitration alone 6. Without the power to order the
injunctions, tribunals would have no means of enforcing arbitration agreements.

An Arbitral Tribunal’s power to grant anti-suit injunction is derived from three sources 7,
namely: arbitration agreement, arbitration rules and national laws.

3
Article 8(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement
shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer
the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being
performed.
4
Article II (3)-The court of a Contracting State, when seized of an action in a matter in respect of which the parties
have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties
to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
5
Emmanuel Gaillard and John Savage (eds) Fouchard Gaillard Goldman on International Commercial
Arbitration (Kluwer Law International, Netherlands, 1999) at [624.]
6
Id.
7
Stephanie Lie Luxford, What Is The Proper Scope Of The Power Of An Arbitral Tribunal To Issue An Order
Restraining A Party From Pursuit Of Parallel Proceedings In A National Court, LAWS521: International
Arbitration and Dispute Settlement Trimester 1 & 2 2015. 
 A. Arbitration agreement

There are cases where arbitration agreement is devoid of explicit

provisions concerning whether the constituted arbitral tribunal can order
provisional measures and of what kind. In such cases with absence of
specifications, by default, the tribunal has the power to order provisional
measures.8 This view is further substantiated by Article 17 (1) of the
UNCITRAL Model Law. The only restriction to the power to grant any
interim relief is parties’ autonomy which the parties in the instant case
have negated to exercise.

Similar are the conclusions even where national and arbitration laws and
rules are silent on interim measures since arbitrators are assumed to have
an implied power to grant interim relief as “by the arbitration agreement
the parties give the tribunal the powers necessary to settle their dispute …
[which] includes any measure of provisional relief which is necessary to
safeguard the rights of the parties and the efficiency of the tribunal’s
decision making.”9

Thus the present Arbitral Tribunal derives power, out of absence of any
agreement to the contrary, to grant anti-suit injunction restraining the
Respondent from initiating court proceedings.

B. Arbitration rules

The second check is the Arbitration Rules. The parties under the
Arbitration Agreement may have decided the rules by which the

8
Lew, Mistelis and Kröll Comparative International Commercial Arbitration, above n 1, at [23-30]. For example,
the arbitration agreement in Mantovani v Caparelli[1980] 1 Lloyd’s Rep 375 (CA), cited at [23-7]-[23-14] and [23-
116]. See also the discussion of international arbitration rules from [23-23]-[23-29]. Also relevant here is Gaillard
and Savage Fouchard Gaillard Goldman on International Commercial Arbitration, above n 45, at [1319]; and
Christoph H SchreuerThe ICSID Convention: a commentary on the Convention on the Settlement of Investment
Disputes between States and Nationals of 0ther States (1st ed, Cambridge University Press, Cambridge, 2001),
chapter on article 47, at [7].
9
Lew, Mistelis and KröllComparative International Commercial Arbitration, above n 1, at [23-30].
 arbitration proceedings be accorded. Such rules also determine the arbitral
tribunal’s power to grant anti-suit injunction.

Take for an example that the parties have agreed to AIAC rules. The
AIAC rules authorize the Arbitral Tribunal by imposing no restriction on
its powers to grant interim relief. Rule 8 10 of the said rules specifies the
ambit of such power as being pursuant to Article 26 of the UNCITRAL
Rules. The Article expressly empowers the tribunal to grant any interim
measure on the grounds, but not limited to ones mentioned in Cl. 2 of
Article 26.

Where arbitration rules are silent on provisional measures, arbitrators can

be assumed to have an implied power to grant interim relief which
includes any measure of provisional relief which is necessary to safeguard
the rights of the parties and the efficiency of the tribunal’s decision
making and thus, includes anti-suit injunction.

C. National Laws

When arbitration agreements are chosen to be kept silent regarding

provisional measures, the national laws are checked for the arbitration
process11. Mandatory rules or domestic laws of the lex arbitri or the law
applying to the arbitration is required to be followed by the arbitral
tribunal. This is also relevant to anti suit injunctions since a large number
of national arbitration laws are based on the UNCITRAL Model Law.12

The UNCITRAL Model Law specifically provides for anti-suit injunctions

through Article 17(2)(b). The same provisions of UNCITRAL Model Law
10
Rule 8 - Interim Measures (1.) The arbitral tribunal may, at the request of a party, grant interim measures pursuant
to Article 26. (2.) A party in need of urgent interim measures prior to the constitution of the arbitral tribunal may
submit a request to appoint an emergency arbitrator to the Director pursuant to Schedule 3.
11
Alan Redfern and others Law and Practice of International Commercial Arbitration, above n 42, at [6-17]; and
UNCITRAL Model Law, Explanatory Note by the UNCITRAL Secretariat, at 25.
12
See UNCITRAL “Status: UNCITRAL Model Law on International Commercial Arbitration (1985), with
amendments as adopted in 2006” <www.uncitral.org>.
 stand incorporated in national law of India in the form of the Arbitration
and Conciliation Act, 1996 [26 of 1996] as amended by The Arbitration
and Conciliation (Amendment) Act, 2015 [3 of 2016]. Section 17 of the
said Act confers power on the Arbitral Tribunal equivalent to “Court” 13.
Accordingly, the Tribunal is conferred with power equivalent to High
Court14 which is further entitled as per Indian domestic laws to grant anti-
suit injunction.

Arbitral Tribunals seated in India, therefore, can be said to have the power to grant an anti-suit
injunction to restrain the Respondent from initiating proceedings in the courts for breach of
contract. A Tribunal has the power to decide upon its jurisdiction, besides it derives unhampered
authority of providing interim relief of such a nature from arbitration agreement, rules of
arbitration and the national laws.

3. What hinders power of an arbitral tribunal seated in India to grant anti-suit injunction?

However, the power with an Arbitral Tribunal to grant anti-suit injunction is hindered by a three-
fold restrain: principle of competence-competence, absence of sanction and recognition of anti-
suit injunction by lex arbitri and infringement of guaranteed right to approach courts.

A Tribunal is authorised only to rule over its own jurisdiction 15 and not to settle jurisdiction of
Courts of Law. Jurisdiction over the disputed matter can be declared, not ordered. Declaring
jurisdiction enables the arbitrator to rule on the merits of the dispute, but does not comprise the
power to exclude the jurisdiction of others.16 Grant of anti-suit injunction, although will be made
in personam, it will adversely affect the court’s jurisdiction, thereby obliterating not only the
established principle of Competence-Competence but also violating the principle of comity.
13
The term “Court”, in context of international commercial arbitration, has been defined in Section 2 (e)(ii) of the
above-mentioned Act:
“(ii) In the case of international commercial arbitration, the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had
been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of
courts subordinate to that High Court;”
14
Id.
15
Article 16, UNICITRAL
16
Laurent Levy, Anti-Suit Injunctions Issued by Arbitrators, Anti-Suit Injunctions in International Arbitration, 21st
Nov 2013 at 115, 120.
In an unreported ICC case, Procedural Order of November 2000, the arbitral tribunal while
refusing an anti-suit injunction mentioned:

“The Arbitral Tribunal would, however, have had serious reservations about
ruling on the lack of jurisdiction of a state Court and issuing a decision, which
could purport to deny a party access to justice before such a state Court. It is a
fundamental principle that each Court and Arbitral Tribunal has jurisdiction to
rule on its own jurisdiction or, in other words, has Kompetenz-Kompetenz”17

The domestic courts have the authority to decide on their own jurisdiction and the same cannot
be restricted by arbitral tribunals. Moreover, the parties by agreement do not waive all their
rights to resort to the courts but remain entitled to approach courts for certain measures.
Moreover, such an injunction granted might also fail enforcement. Indian laws lack civil law
provisions for grant of anti-suit injunction even by constitutional courts. Judicial jurisprudence of
India has evolved the concept of such injunctions exclusively resting with courts, not with
contractual or quasi-judicially constituted tribunals.

If an order is passed in consonance with Claimant’s request for relief, it would be in breach of
substantive law provisions and “if the award is contrary to the substantive provisions of law or
the provisions of the Act or against the terms of the contract, it would be patently illegal, which
could be interfered under S. 34 of the Arbitration and Reconciliation Act, 1996.
Although S. 17 of the Indian Arbitration Act authorizes arbitral tribunal to grant interim reliefs, it
cannot exercise its power beyond the authorities of courts which themselves lack explicit
authority to restrain a party from initiating court proceedings.

The Apex Court of India has maintained in Venture Global Engg v. Satyam Computer Service
Ltd.18 that an arbitral award could be set aside if it is contrary to fundamental policy of Indian
law, or the interest of India, or justice or morality, or it is patently illegal. At the same time,
access to justice has been declared as a fundamental right under Article 14 and 21 of the Indian

17
Ibid.
18
2008 (4) SCC 190
Constitution19 and fundamental rights, further, cannot be waived. 20 This renders an award of anti-
suit injunction unenforceable and illegal, and thus, not fit to be granted.

4. Conclusion

It is not, thus, wrong to conclude that although the other countries have not reached the legal
standpoint domestically to comfortably allow grant of anti-suit injunctions by arbitral tribunals in
cases of international commercial arbitration, India can steer itself towards this evolution without
significant difficulties. However, certain amendments might facilitate an effortless change. If
statutes expressly recognize the power of courts to grant anti-suit injunction, it would be an
unproblematic task for arbitral tribunal to assume the same by virtue of Indian arbitration law.

In International Arbitration Cases, forum shopping is a real challenge followed by interference of

domestic courts. Such troubles not only frustrate the arbitration but also dissolve the very
purpose of opting for an out-of-court settlement way. While it might be felt that by restraining
parties to approach courts would rob the judicial courts of their powers and responsibility, such a
view is not wholly correct since enforcement of the arbitration award is in the hands of judicial
courts. At enforcement stage they can deliver their responsibility of checking for any
inappropriate or malafide restraint.

19
Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509
20
Olga Tellis v Bombay Municipal Corporation, 1986 AIR 180