Anti-Suit Injunctions

In investment arbitration, anti-suit injunctions¹ (or orders)² refer to interlocutory or provisional measures issued by arbitral tribunals to prevent the parties from initiating or pursuing recourse before State courts or other international tribunals pending resolution of a dispute before a particular arbitration forum. Arbitration rules explicitly refer to the power of arbitral tribunals to grant provisional measures.³ The Permanent Court of International Justice,⁴ and the Iran-US Claims Tribunal,⁵ among other international courts and tribunals, have granted anti-suit injunctions in the past in the form of provisional or interim measures.

Requests for anti-suit injunctions must generally fulfill the following conditions applied to interim or provisional measures:

1. Existence of a prima facie jurisdiction of the arbitral tribunal;
2. Existence of the rights (both procedural and substantive) susceptible of protection;
3. Necessity, meaning that relief sought should prevent irreparable harm;⁶
4. Urgency;⁷ and
5. Proportionality (balance of inconvenience).⁸

Further, arbitral tribunals and commentators have recognized that injunctions against domestic criminal proceedings initiated against investors or persons involved in the arbitration proceedings (i.e., witnesses or experts) may encroach on the sovereign right to regulate.⁹ Arbitral tribunals may “depart from the general rule entitling a State to enforce on the national level its criminal laws” under exceptional circumstances¹⁰ and order a mere stay of the criminal proceedings which “would not affect the [State’s] sovereignty nor require conduct in violation of national law.”¹¹ See further Good Faith and Police Powers. Such requests for stay of criminal proceedings require a “particularly high threshold” of proof.¹²

The rights whose protection is sought as part of the anti-suit injunction requests are mainly of procedural nature, i.e., the rights to maintain the status quo, to non-aggravation of the dispute, and to the protection of the integrity and exclusivity of the arbitral proceedings.¹³

The exclusivity of the arbitral proceedings may be threatened by parallel domestic proceeding. In this case, the moving party must meet the triple identity test, proving that the arbitration proceedings and the domestic proceedings, that are sought to be suspended, have the same i) parties, ii) object and iii) cause of action.¹⁴ It must be noted that domestic criminal proceedings, having different subject-matter and often involving different persons, do not, in principle, violate exclusivity of the arbitral proceedings.¹⁵ Further, unlike many other arbitral rules,¹⁶ the ICSID Convention and Arbitration Rules also preserve the exclusivity of the ICSID tribunals over interim relief.¹⁷