The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
1 What are anti – suit injunctions?
2 When and where can an anti – suit injunction be granted and used
3 The Indian position on anti – suit injunctions
3.1 Suncorp Confectionary case
4 What is an anti – anti – suit injunction?
“Anti-suit injunctions are national court orders use especially in common law countries, in order to protect the jurisdiction of the arbitral tribunal, or to prevent the tribunal from assuming jurisdiction. Anti-suit injunctions may order a party not to pursue court proceedings initiated in breach of a dispute resolution clause, or an arbitration agreement.”[1]
It is use in situations where private parties have an arbitration agreement. To prevent one of the parties from commencing. An action in another forum or in a forum located in a foreign jurisdiction.
No provision that allows for anti–suit injunctions to be provided in the case of arbitration exists. Either in the Arbitration And Conciliation Act of 1996 or any other international law instrument but it is not illegal. It can construe to allowed through the wordings of Section 8 (3) and 45 of the Arbitration Act.
An anti – suit injunction is grant and can sought for in situations in where it is clear with no doubt that the arbitration proceedings have been wrongly initiate by one of the parties.
In the Indian scenario in order for an anti – suit injunction to be granted there are three main criteria that must be met. These are that (i) amenability of the opposite side to the personal jurisdiction of the court; (ii) forum conveniens; and/or (iii) ends of justice would be defeated.
Up until the Bina Modi case [2] that was decided by the Delhi High in March 2020 the Indian position on the granting of anti – suit injunctions in the case of arbitral proceedings was different. Post this case the position has changed to be in favour of arbitral tribunals deciding on matters of their own jurisdiction.
Prior to the Bina Modi case [3], there were a whole series of landmark judgments delivered by the Indian courts which laid down the position on the granting of anti–suit injunctions. The first of which was the LMJ International Ltd case [4] where the Calcutta High Court rejected the suit to refrain the other party from starting arbitration or taking steps to start arbitral proceedings in London on the grounds that the parties had entered into the contract knowing its terms and conditions.
The next case was the Suncorp Confectionary case [5] where the Delhi High Court refused to interfere in proceedings that were initiated by one of the parties before the Singapore International Arbitration Center and held that all the objections raised by the parties must be decided by the tribunal. The next case was the Chatterjee Petrochem Co case[6] where the Supreme Court rejected a petition that was filed challenging Paris ICC arbitration.
Next case was The Board of Trustees of Port of Calcutta case[7] where the Calcutta High Court granted the anti–suit injunction but at the same time held that anti–suit injunctions can only be granted in exceptional cases. After this case the Courts start to become more in favor of granting anti–suit injunctions based on the facts and circumstances of each case and start to place reliance on the Kvarner Cementation judgment [8] which had been passed several years before for the same.
With the National Aluminium Co Ltd case [9] the position of the Courts again begins to change with the Court not granting an anti-suit injunction on the grounds that the proper remedy to take is under Section 16 which can only be decided by the arbitral tribunal. It is soon after this case that the Bina Modi judgment [10] is delivered.
In the Bina Modi case[11], the Delhi High Court “primarily relied on the judgment of the Supreme Court in Kvaerner Cementation India Ltd. v. Bajranglal Agarwal & Anr, which had held that the arbitral tribunal has the power to decide even questions of its own jurisdiction, and by virtue of Section 5 read with Section 16 of the Arbitration and Conciliation Act, 1996, an anti-arbitration injunction suit is not maintainable”.[12] The Court uses this to tilt the balance in favour of the arbitral tribunal by allowing them to decide on matters of their own jurisdiction.
“An anti-anti-suit injunction is effectively an injunction restraining a court, where a proceeding in the nature of an anti-suit injunction is pending and/or where orders of anti-suit injunction have been passed, from continuing with such a proceeding.”[13]
The evolution of anti – anti – suit injunctions is still in its early stages. In India and the questions of whether the laws that apply to anti – suit injunctions can also be applicable to anti – anti – suit injunctions especially the Bina Modi case.[14]
The purpose behind having anti – suit injunction is to prevent two arbitral proceedings from happening at the same time. So, the granting of an anti – suit injunction is necessary in order to prevent duality of proceedings happening at the same time in entirely different jurisdictions.
The Indian position on the granting of anti–suit injunctions and the facts and circumstances in which they are grant have changed over time. Initially, the Indian Courts do not grant these injunctions on the grounds of maintaining a position of non – interference. However, this position changes with the Courts later refusing them on the grounds of jurisdiction. The Courts granting them based on the facts and circumstances of each case and only in exceptional cases. To finally saying anti–suit injunction is not the right way. To go that Section 16 of the Arbitration And Conciliation Act. It is the right remedy for which the arbitral tribunal. Must be approached to finally saying that arbitral tribunals can decide on matters of their own jurisdiction.
Therefore, the decision on the granting of anti – suit injunctions is finally with the arbitral tribunal in India. That is deciding on the matter. And for the injunction to grant there are particular circumstances that exist which I have elucidate upon earlier.
[1]Ezgi Babur, Turkey: Anti-Suit Injunctions In International Arbitration, Mondaq, (06th January 2021), https://www.mondaq.com/turkey/trials-appeals-compensation/382468/anti-suit-injunctions-in-international-arbitration
[2] Bina Modi & Ors. v. Lalit Modi & Ors. 2020 SCC OnLine Del 1678
[3] Bina Modi & Ors. v. Lalit Modi & Ors. 2020 SCC OnLine Del 1678
[4] LMJ International Ltd v. Sleepwell Industries Co. Ltd. and Anr 2017 SCC OnLine Cal 12762
[5] Sancorp Confectionary v. Gumlik 2012 SCC OnLine Del 5507
[6] Chatterjee Petrochem Company and Anr v. Haldia Petrochemicals Ltd. and Ors 2013 SCC OnLine SC 1084
[7] The Board of Trustees of Port of Kolkata v. Louis Dreyfus Armatures SAS and Ors 2014 SCC OnLine Cal 17695
[8] Kvaerner Cementation India Ltd. v. Bajranglal Agarwal & Anr 2012 5 SCC 214
[9] National Aluminium Company Ltd v. Subhash Infra Engineering Pvt. Ltd 2018 SCC OnLine SC 3282
[10] Bina Modi & Ors. v. Lalit Modi & Ors. 2020 SCC OnLine Del 1678
[11] Bina Modi & Ors. v. Lalit Modi & Ors. 2020 SCC OnLine Del 1678
[12] Lomesh Kiran Nidumuri, India’s approach to anti-arbitration injunction suits: Step in the right direction?, para 4, Bar and Bench, (06th January 2021), https://www.barandbench.com/columns/indias-approach-to-anti-arbitration-injunction-suits-step-in-the-right-direction
[13] Vijaykumar and Dutta, The quandary in granting “anti-anti” suit injunctions: Application in Indian law, para 6, Bar and Bench (06th January 2021), https://www.barandbench.com/columns/indias-approach-to-anti-arbitration-injunction-suits-step-in-the-right-direction
[14] Supra note 11.
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