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Introduction to Arbitration in
India: The Role of the
Judiciary
Jurisdiction
India
Bibliographic reference
'Chapter 6: Issuance of Anti-
suit Injunction in
International Commercial
Arbitration: Understanding
the Trend of Indian
Judiciary', in Tushar Kumar
Biswas , Introduction to
Arbitration in India: The Role
of the Judiciary, (© Kluwer
Law International; Kluwer
Law International 2013) pp.
79 - 100
© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Chapter 6: Issuance of Anti-suit Injunction in International
Commercial Arbitration: Understanding the Trend of Indian
P 99
Judiciary
P 79
§6.01 Introduction
Parties to modern international litigation are more sophisticated, and are more likely to forum
shop, (1) just as their opponents will more likely resort to anti-suit injunctions to prevent them
from doing so. Litigants facing anticipated or ongoing foreign proceedings are no longer
satisfied simply with challenging proceedings in foreign courts. Instead, they often consider,
and elect to pursue, preemptive remedies—such as anti-suit injunctions—in domestic courts to
enjoin the undesired foreign proceedings. (2)
P 79 Anti-suit injunction in the international context can be termed as an order (often described as
P 80 an extraordinary remedy) given by the court (3) to a party which possess personal
jurisdiction over a particular matter containing prohibition against filing a claim/claims before
foreign jurisdiction or the order may also contain a prohibition not to proceed with a claim
which has already been filed by a party. The reason for which an anti-suit injunction order is
given is usually that the same issues between the same parties are currently being litigated or
arbitrated within the jurisdiction of the court issuing the order. (4) From the perspective of
arbitration, having parallel proceedings undermines the very purposes of arbitration, which
are to have the dispute resolved in a neutral forum, to have confidentiality, to have a faster,
more efficient, and less costly proceeding. Parallel proceedings create delays, inefficiencies,
costs, and also the uncertainty that one may end up with conflicting decisions. That is what
anti-suit injunctions are supposed to stop. (5) Moreover, the injunction effectuates the parties'
agreement to resolve all disputes through arbitration so that it does not do something which it
promised not to do.
As litigation becomes increasingly international in nature, anti-suit injunctions, issued to
enjoin foreign proceedings, are becoming more commonplace. (6) The situations ordinarily
under which anti-suit injunctions are invoked need to be discussed. Usually when a dispute
arises, one party may try to avoid arbitration by seeking a remedy in a national court system.
This controversy generally develops in one of the following ways:
(i) Case one: whereby one party to the agreement seeks arbitration, the other party refuses
to arbitrate, and the first party seeks an order from a national court compelling
arbitration. The party wishing to avoid arbitration may argue in that court that it should
not be forced to arbitrate the dispute at hand and may also go to another national court
system seeking to enjoin the first proceeding. (7) Should a second action be instituted,
P 80 the party seeking arbitration may request that the first court issue an anti-suit injunction
P 81 against that second action. (8)
(ii) Case two: The problem in this case usually comes into picture from an arbitral award.
The award debtor may decide to attack the award in a national court system. At the
P 81 same time, the award creditor may ask another court to enforce the judgment and issue
P 82 an anti-suit injunction (9) against the party seeking to overturn the judgment. (10)
(iii) Case three: This situation also emanates from an arbitral award. For example, in an
international commercial arbitration the final award by the arbitrator is allegedly
rendered in violation of the principle of natural justice. The award creditor files
application for the enforcement of the award in the award debtor's country as well as a
plaint in its home country for confirming the award as well as judgment against the
award debtor whereas the award debtor files a petition for setting aside the award in its
home country as well as an anti-suit injunction to prevent the award creditor from
proceeding with the suit of its own country. (11)
P 82
P 83
§6.02 Anti-suit Injunction and the Doctrine of Forum Non conveniens
The issue is what options does a court faced with parallel litigation have? Ordinarily there can
be three most common options which the court could exercise. First, a court may choose to do
nothing, allowing both proceedings to go on simultaneously. Second, a court may choose to
stay or dismiss its own proceeding in favor of allowing the foreign proceeding to continue
unfettered. (12) Third, a court may choose to issue an anti-suit injunction against the parties
before it, to keep them from prosecuting the litigation in the foreign forum. (13) It is in the
second sense the doctrine of forum non conveniens becomes relevant.
An anti-suit injunction is granted by a court preventing the parties before it from instituting or
continuing with proceedings in another court whereas, by contrast, as discussed earlier, the
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 doctrine of forum non conveniens is invoked by a court to not entertain a matter presented
before it in view of the fact that there exists a more appropriate court of competent
jurisdiction which would be in a better position to decide the lis between the parties. So, in a
sense the principle on which an anti-suit injunction is invoked is just the reverse of the
principle on which the doctrine of forum non conveniens is employed. (14) The following
example illustrates the relationship between these principles. Assuming that there are two
courts A and B at different places and both having jurisdiction in a particular matter, a party
may approach court A for an anti-suit injunction against the other party preventing them from
instituting a suit or other proceeding in court B. Of course, while considering the grant of an
anti-suit injunction, court A would take into account as to which of the two courts is the more
P 83 convenient forum. However, when a party approaches court A and the defendants take up the
P 84 plea that court A is a forum non conveniens and that the matter ought to be more
appropriately dealt with by court B, then court A, invoking the principles of forum non
conveniens, may refuse to entertain the matter presented to it and direct the parties to
approach court B being the more convenient forum. Thus, it is seen that in an anti-suit
injunction, one court grants an injunction restraining the parties from approaching another
court. (15) By contrast, in the case of the doctrine of forum non conveniens, the court before
whom the matter is presented, itself refuses to entertain the same and directs the parties to
approach the other court being the more appropriate and convenient forum. It must also be
kept in mind that the court granting an anti-suit injunction must otherwise have jurisdiction
over the matter. Similarly, the court rejecting a matter on the principle of forum non
conveniens must otherwise also have jurisdiction to entertain the same. This is so because if
the court in either case does not have jurisdiction then, it cannot deal with the matter and,
consequently, it can neither grant an anti-suit injunction nor pass an order refusing to hear the
matter on the plea of forum non conveniens. (16)
It is to be noted here that where only one court has jurisdiction it is said to have exclusive
jurisdiction; where more courts than one have jurisdiction over a subject matter, they are
called courts of available or natural jurisdiction. (17) The growth in global commercial activity
has given rise to the practice of the parties to a contract agreeing beforehand to approach for
resolution of their disputes (18) thereunder, any of the available courts of natural jurisdiction,
thereby creating an exclusive or non-exclusive jurisdiction in one of the available forums or
agreeing to have the disputes resolved by a foreign court of their choice as a neutral forum
according to the law applicable to that court.
In Indian context, it is a well-settled principle that by agreement the parties cannot confer
jurisdiction, where none exists, on a court to which Code of Civil Procedure, 1908 (hereinafter
referred to as “CPC”) applies, but this principle does not apply when the parties agree to
P 84 submit to the exclusive or non-exclusive jurisdiction of a foreign court. (19) Thus, it is clear that
P 85 the parties to a contract may agree to have their disputes resolved by a foreign court
termed as a “neutral court” or “court of choice” thus creating exclusive or non-exclusive
jurisdiction in it. (20)
The starting point for considering the effect of a non-exclusive jurisdiction clause must be the
wording of the clause itself. (21) Nevertheless, once a party seeks to bring proceeding pursuant
to a promise that its counterparty should submit to the jurisdiction of an identified forum,
there is generally little fundamental difference, between the approach of the Indian courts to
cases involving exclusive and non-exclusive jurisdiction agreements as to whether or not a stay
of proceeding should be granted. (22)
When the clause is clear, unambiguous and specific accepted notions of contract would bind
the parties and unless the absence of ad idem can be shown, the other courts should avoid
exercising jurisdiction. As regards construction of the ouster clause when words like “alone”,
“only”, “exclusive” and the like have been used there may be no difficulty. Even without such
words in appropriate cases the maxim “expressio unius est exclusio alterius” —expression of one
is the exclusion of another—may be applied. What is an appropriate case shall depend on the
P 85 facts of the case. In such a case mention of one thing may imply exclusion of another. When
P 86 certain jurisdiction is specified in a contract an intention to exclude all others from its
operation may in such cases be inferred. (23) It has, therefore, to be properly construed.

§6.03 Rationale for Preferring Anti-suit Injunction over Other Alternatives

It is evident that due to frequent need to take urgent action, parties who wish to avoid
involvement in a lawsuit with international connections commonly apply for an anti-suit
injunction in some other forum; their only other viable option is to file petition for a dismissal
for forum non conveniens (24) in the forum where the suit has been initiated, (25) a strategy
which will be discussed subsequently. Ordinarily, when faced with a request for an anti-suit
injunction against a plaintiff who has sued in a foreign forum, each state court will generally
decide the issue based on its own view of the equities and the same applies in Indian context
as well.
From the more practical perspective the possible circumstances under which a litigant may
prefer to seek an anti-suit injunction in domestic courts rather than a stay of proceedings in a
foreign court need to be investigated. The following scenarios may prompt a party to proceed
in this manner:

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 (i) Where a litigant may find it difficult to obtain a stay of proceedings in the foreign court
due to certain considerations, for example, the court may have extremely wide
jurisdictional rules or a lack of a forum non conveniens doctrine. (26)
(ii) Where the foreign court may look upon a stay application made by the litigant as
submission to its jurisdiction, which gives the foreign court the ability to render an
internationally enforceable judgment.
(iii) Where the litigant is simply skeptical of his ability to obtain a stay of proceedings in the
foreign court.
P 86 (iv) Where the litigant is reluctant to incur the expense and inconvenience of challenging the
P 87 jurisdiction or seeking a stay of proceedings overseas.
(v) Where issues of timing demand that the litigant proceed swiftly (and proceedings can be
pursued fastest in the domestic forum) or in the forum where a party is most familiar or
comfortable. (27)
However, the greatest advantage of anti-suit injunction—or at least the importance of an anti-
suit injunction lies in the fact that if the foreign court declines to recognize the injunction, it
may be enforced in the issuing forum by an action for contempt of court against the party
failing to heed the injunction, (28) or alternatively, the issuing court may refuse to recognize
any foreign judgment obtained by the plaintiff. (29)

§6.04 Constraints of Issuing Anti-suit Injunction by Indian Courts

Prima facie the constraints in respect of the competence of Indian courts to issue anti-suit
injunction need to be examined. The first constraint can be termed as statutory, i.e., whether
Indian courts will declare themselves as lacking the required competence to issue an anti-suit
injunction in an international commercial arbitration due to the Specific Relief Act, 1963.
Section 41(b) of the Specific Relief Act, provides that “an injunction cannot be granted to
restrain any person from instituting or prosecuting any proceeding in a court not subordinate to
that from which the injunction is sought.”
The courts in India like the courts in England (30) are courts of both law and equity. It was
observed by the court that the principles governing grant of injunction—an equitable relief—by
a court will also govern the grant of an anti-suit injunction, which is but a species of injunction.
P 87 It is a common ground that the courts in India have power to issue an anti-suit injunction
P 88 against a party over whom it has personal jurisdiction, in an appropriate case. This is
because courts of equity exercise jurisdiction in personam. (31) The Supreme Court made an
endeavor to clarify the concern discussed above with the following words: (32)
This provision, in our opinion, will be attracted only in a fact-situation where an injunction is
sought to restrain a party from instituting or prosecuting any action in a Court in India which is
either of co-ordinate jurisdiction or is higher to the Court from which the injunction is sought in
the hierarchy of Courts in India (33) … In fact this court had granted such a restraint order in
V/O Tractor Export, Moscow v. Tarapore & Co. and Anr. MANU/SC/0003/1969: [1970]3SCR53 and
had restrained a party from proceeding with an arbitration proceeding in a foreign country (in
Moscow (34) )
Ordinarily, from the perspective of a defendant an Indian court is confronted with an anti-suit
injunction under two situations: First, where a party against whom an anti-suit injunction is
P 88 sought is an Indian party or resident in India and second, where the defendant is a foreign
P 89 party or resident abroad. Insofar as a party is an Indian or a party resident in India is
concerned, there is no difficulty with respect to the aspect of jurisdiction. Undoubtedly, the
Indian court would have jurisdiction in the grant of an anti-suit injunction against an Indian
party or party resident in India. In case of a foreign party or those who are resident abroad, the
court in India will necessarily have to tread carefully in issuing an anti-suit injunction as in
such circumstances it will have to base it on the principle of sufficiency of connection in the
context of appropriateness of the forum. The courts in India will have to be even more
circumspect where the foreign party has already instituted an action in a foreign court. An
Indian court will have to necessarily bear in mind that if summons are issued outside the
territorial jurisdiction of Indian courts, it may not be complied with or, that the foreign party
may attempt to seek remedy in the jurisdiction of the court where it is resident. However, the
possibility of such a situation should not deter an Indian court to issue an injunction if it
otherwise finds it has jurisdiction.
Again, more important is the issue from Indian scenario is whether there are any constitutional
constraints of issuing an anti-suit injunction in Indian context? The issue can be discussed from
two broad perspectives. First is from the perspective of separation of power and second is from
the perspective of “full faith and credit clause” under the Constitution of India. First, it has to
be kept in mind that the separation of power doctrine is embodied in the Constitution of India
under various provisions. The ground of separation of power doctrine can be of legitimate
objection because of the fact that the judicial interference with a foreign country's exercise of
adjudicatory authority has a potential for embarrassing the political branches of government
and disturbing India's relations with that country. (35) However, in Indian context, that concern
has not prevented courts from occasionally refusing to enforce a foreign award made in a
foreign territory, from denying effect on public policy grounds to the otherwise applicable
foreign law, or from refusing to recognize or enforce a foreign country judgment made abroad.

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 (36)
In the Indian context, so far no court has categorically invoked the central government's foreign
P 89 relations power (37) to debar itself from issuing orders in restraint of foreign judicial
P 90 proceedings. Interestingly, not even the Supreme Court of India has suggested that the High
Court's exercise of injunctive power to restrain foreign judicial proceedings amounts under the
circumstances to an infringement of the Executive's constitutional authority to conduct the
country's foreign relations
Second, from the perspective of the Constitution, further question can be raised whether there
can be any constraints of issuing an anti-suit injunction owing to the fact that there is “full faith
and credit clause” (38) in the Constitution of India? The full faith and credit clause under the
constitution requires by its very nature that full faith and credit shall be given throughout the
territory of India to public acts, records and judicial proceedings of the Union and of every
state. The litigants contesting the propriety of out-of-state anti-suit injunctions, whether on
general principles or as applied to specific circumstances might raise constitutional objections
based on that said Clause. But the fact is that the said clause is applicable to only in domestic
context and there is no reference whether directly or indirectly of other states judicial
proceedings. There can be a second order argument also namely that the order does not
interfere directly with the proceedings of a foreign court but only operates in personam against
the party enjoined. (39)

§6.05 Is There Any Acid-Test for Granting Anti-suit Injunction under Indian
Jurisprudence?
In order to grant or refuse anti-suit injunction, the test of “ends of justice” as well as “necessity”
P 90 were adopted by the Supreme Court of India in Oil and Natural Gas Commission v. Western
P 91 Company of North America (40) (hereinafter referred to as “ONGC”) with the following words:
it would be unfair to refuse the restraint order in a case like the present one for the action in
the foreign Court would be oppressive in the facts and circumstances of the case. And in such a
situation the courts have undoubted jurisdiction to grant such a restraint order whenever the
circumstances of the case make it necessary or expedient to do so or the ends of justice so
require.
The court went further in saying that:
with regard to foreign proceedings the court will restrain a person within its jurisdiction from
instituting or prosecuting proceedings in a foreign court whenever the circumstances of the
case make such an interposition necessary or expedient. In a proper case the court in this
country may restrain a person who has actually recovered judgment in a foreign court from
proceeding to enforce that judgment. The jurisdiction is discretionary and the court will give
credit to foreign courts for doing justice in their own jurisdiction.
Subsequently, the test laid down by the Supreme Court of India in Modi Entertainment Network
and Anr v. W.S.G. Cricket PTE. Ltd (41) (hereinafter referred to as “Modi Entertainment”) for
granting anti-suit injunctions echoed the earlier finding with some additions whereby the court
inter alia gave the following criteria for issuing an anti-suit injunction:

P 91 (i) The defendant, against whom injunction is sought, is amenable to the personal
P 92 jurisdiction of the Court. (42)
(ii) If the injunction is declined, the ends of justice will be defeated and injustice will be
perpetuated. (43)
(iii) The principle of comity-respect for the Court in which the commencement or
continuance of action/ proceeding is sought to be restrained—must be borne in mind.
(iv) In a case where more than one forum is available, the Court, in exercise of its discretion
to grant anti-suit injunction, will examine which is the appropriate forum (forum
conveniens) having regard to the convenience of the parties, and may grant anti-suit
P 92 injunction in regard to proceedings which are oppressive or vexatious (44) or in a forum
P 93 non conveniens.
(v) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract,
the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of
choice of the parties are not determinative but are relevant factors and when a
question arises as to the nature of jurisdiction agreed to between the parties the Court
has to decide the same on a true interpretation of the contract on the facts and in the
circumstances of each case.

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 (vi) A court of natural jurisdiction will not normally grant an anti-suit injunction against a
defendant before it where the parties have agreed to submit to the exclusive
jurisdiction of a court including a foreign court—a forum of their choice in regard to the
commencement or continuance of proceedings in the court of choice, save in an
exceptional case for good and sufficient reasons. A court may grant an anti-suit
injunction if it is satisfied that one is necessary to prevent injustice in circumstances
such as which permit a contracting party to be relieved of the burden of the contract, or
if, since the date of the contract, the circumstances or subsequent events have made it
impossible for the party seeking the injunction to prosecute the case in the court of
choice because the essence of the jurisdiction of the court does not exist or because of
a vis major or force majeure and the like.
(vii) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a
neutral foreign forum and be governed by the law applicable to it for the resolution of
their disputes arising under the contract, ordinarily no anti-suit injunction will be
granted in regard to proceedings in such a forum conveniens and favored forum as it
shall be presumed that the parties have thought over their convenience and all other
relevant factors before submitting to non-exclusive jurisdiction of the court of their
choice which cannot be treated just an alternative forum.
(viii) A party to the contract containing a jurisdiction clause cannot normally be prevented
from approaching the court of choice of the parties as it would amount to aiding breach
of the contract; yet when one of the parties to the jurisdiction clause approaches the
court of choice in which exclusive or non-exclusive jurisdiction is created, the
P 93 proceedings in that court cannot per se be treated as vexatious or oppressive nor can
P 94 the court be said to be forum non conveniens.
(ix) The burden of establishing that the forum of choice is a forum non conveniens or the
proceedings therein are oppressive or vexatious would be on the party so contending to
aver and prove the same. (45)
Nonetheless, some jurists argue that even though strong reasons have to be shown why the
parties are not kept to their bargain, the grant of an injunction to enforce the covenant
regarding resolution of disputes is still discretionary and not automatic. (46) It does not stand
on the same footing as the general approach of a court of equity in enforcing a negative
covenant. (47)

§6.06 International Comity Considerations while Issuing Anti-suit

Injunction: An Impediment?
Needless to say that while addressing the issue of anti-suit injunction in the context of
arbitration, there remains essentially two compelling public policies which are equally
important. The first one is international comity, a doctrine of judicial restraint which requires
courts to respect other countries' laws and judicial decisions in order to further international
dispute resolution. (48) The other one is favorable treatment towards international arbitration
specially where there is arbitration agreement to that effect.
The anxiety over international comity (49) is perhaps the greatest hurdle to the issuance of an
anti-suit injunction in India that would prevent a party from proceeding with an action in a
foreign court. That is because such an injunction effectively restricts the jurisdiction of a
foreign court, even though it operates only against the parties. The principle of comity traces
its origins to the efforts of seventeenth-century legal theorists to reconcile emerging notions of
absolute sovereignty within national boundaries with the ongoing practice, born of
expedience, formal rules, or fairness, of applying foreign law in certain domestic cases. To
solve this riddle in the conflict of laws, Ulrich Huber and his Dutch contemporaries three
centuries ago introduced “comity” as a principle of modest mutual accommodation by which
P 94 nations would “recognize rights acquired under the laws of another state … “so far as they do
P 95 not cause prejudice to the power or rights of such government or of their subjects”. (50) With
empires in retreat and absolutist notions of sovereignty ascendant in newly emerged nations,
comity was for many jurists a satisfactorily non-binding yet reasonably coherent explanation
for one ostensibly unfettered sovereign's application of another's law to a dispute with a
domestic nexus. Comity at its inception was thus a blunt, conceptualist stab at untangling the
dilemma of how sovereignty could delimit itself. (51)
Despite the extraterritorial effect of the anti-suit injunction, and interference with the
sovereignty of the state to which the injunction is directed, it was sometimes argued that when
dealing with the problem of “ordinary arbitrability.” (52) of the arbitration agreement under
Article II(3) of the New York Convention, the seat court of the common law country (of which
India is one), under its own local law, should be able to use an anti-suit injunction to fulfill its
Article II obligations. (53) The principle of party autonomy and legal significance of the seat
court effectively minimize the extraterritorial effect of anti-suit injunctions directed against
foreign jurisdictions, (54) which in effect makes an anti-suit injunction permissible in the Article
II stage. (55)
P 95
P 96
However, among the judicial pronouncements in India, especially in Modi Entertainment,
insofar as the tests put forwarded by the judges for granting an anti-suit injunction, there was a

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 legitimate concern about the principle of international comity. The court went on to saying
that “principle of comity-respect for the Court in which the commencement or continuance of
action/ proceeding is sought to be restrained – must be borne in mind”. But Modi
Entertainment never gave a clear idea or understanding as to what extent the principle of
international comity should be borne in mind or even the parameter to be followed. Perhaps,
it was because comity may be of great normative importance, but its ability to provide
definitive guidance is doubtful. Comity, in its abstract sense, can serve as a general principle,
but no more than that. At the same time, “comity centric” approach may place comity as a
heavy counterweight on one end of the scales, effecting a presumption against issuing anti-suit
injunctions. (56) The comity centric approach places the onus on the moving party to plead
reasons sufficient to tip the scales but, because of comity's abstract nature, gives him little
guidance as to how he can do this. International comity can explain the need for caution in
issuing anti-suit injunctions but not the circumstances in which they should be issued. (57)
However, there can be another approach to the trend to bypass the comity considerations in
an international anti-suit inquiry. Despite the fact that the definition of “comity” may be
difficult to give, or may at least be obscure, its importance cannot be understated. Complete
disregarding of international comity and granting anti-suit injunction in all possible
circumstances might have its own risks. Because though comity is not a rule of law, but one of
practice, convenience and expediency which does not achieve the force of an imperative or
obligation, it has to be kept in mind that it is a nation's expression of understanding which
demonstrates due regard to international duty. At this juncture, it is expedient to discuss the
approach of the court in Board of Control for Cricket in India v. Essel Sports Pvt. Ltd. and Ors (58)
P 96 (hereinafter “BCCI case”). Though the matter is not directly in relation to the issue of
P 97 arbitration, (59) it has its own impact and implication in anti-suit inquiry because of the
complete disregard shown for the principle of international comity. In the instant case, the
Delhi High Court further liberalized the regime of anti-suit injunction in India. The Court has
endorsed the principle laid down in British Airways Board v. Laker Airways Ltd (60) and Midland
Bank v. Laker Airways (61) cases, that an anti-suit injunction can be issued even where there is a
single forum available. The court was typically influenced by the judgment of Societe Nationale
Industrielle Aerospatiale v. Lee Kui Jak, (62) whereby Privy Council disfavored the categorization
theory propounded by the House of Lords in South Carolina Insurance Co. v. Assurantie case.
(63)
While granting an anti-suit injunction on the basis of substantial overlapping of UK claims and
the claims which was filled in India the court observed that where there is an action pending in
an Indian court the plaintiff seeking an anti-suit injunction may seek assistance from it to drive
home its point that it has a legitimate expectation, both legal and equitable to be sued in the
Indian court. (64) The court was specifically inspired by the principle analogous to one which is
applicable in proceedings under section 10 of the CPC, (65) where the court is called upon to
P 97 determine whether it should or should not stay subsequent proceeding initiated before it
P 98 between the same parties (66) in respect of the same cause of action i.e., the principle of res
sub judice. But at the same time in order to attract the principle of res sub judice, it is essential
that previously instituted suit must be pending in the same court in which subsequent suit is
brought, or in any other court in India or in any other courts beyond the limits of India
established or continued by the central government. However, in the case of an anti-suit
injunction inquiry, in the international context, the situation is entirely different. In the
majority of cases, the central government does not have any control over the other foreign
courts. If the domestic principle of res sub judice is made applicable in all cases of anti-suit
injunction inquiry by the Indian court, then there is a likelihood that the injunction will be
issued by the courts in India in almost all possible circumstances which is again detrimental to
the international comity principle.

§6.07 Conclusion
Though there is no escape from the inference that if a proper case is made, the court in India
may restrain a person from proceeding with a foreign suit or from proceeding to enforce the
judgment who has actually recovered judgment in a foreign court, at the same time no court
has categorically invoked the central government's foreign relations power to debar itself from
issuing orders in restraint of foreign judicial proceedings.
Then again, among the tests put forwarded in Modi Entertainment, perhaps the court failed to
consider one of the most vital aspects, one which is generally treated as a gate keeping inquiry
before issuing anti-suit injunction. That is the question of whether parallel suits involve the
same parties and issues. Unless that condition is met, a court ordinarily should go no further
and refuse the issuance of an international anti-suit injunction. (67) The failure to address the
said issue in Modi Entertainment paved the way to the subsequent lower bench in BCCI case to
P 98 interpret the meaning of “same parties” in the widest possible way on the basis of domestic res
sub judice principle. The court in BCCI relied on earlier precedents (68) of res sub judice cases
and observed that “same parties” means “the parties as between whom the matter,
substantially in issue has arisen, has to be decided”. That means the complete identity of
either the subject matter or the parties is not required, which seems to be a too liberal
approach to issue an anti-suit injunction in international scenario.
Coming back to comity considerations, though it is not clear whether the approach of using
comity as a substantive device in the inquiry, and of restricting the anti-suit injunction through
a “comity-induced presumption” is the best way to effect those limits in practice, (69) the very

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 concept of international comity cannot be entirely disregarded. It is understandable in Indian
context that the courts of equity exercise jurisdiction in personam, but having regard to the
rule of comity, it is a legitimate expectation that this power will be exercised sparingly
because such an injunction though directed against a person, in effect might cause
interference in the exercise of jurisdiction by another court. Furthermore, importation of the
ordinary domestic principle of res sub judice in to the international sphere in the matter of
anti-suit injunction and making it a rule might otherwise have an irreparable impact on
international comity considerations whether a matter arises from an arbitration agreement or
otherwise. In the BCCI case, the court had adopted too much of a liberal approach and thus
gave far too easy passage to international anti-suit injunctions, and assigned too low a priority
to international comity.

References
1) There are many factors which contribute to forum shopping. For example, US courts
uniformly offer such significant procedural advantages to plaintiffs that the US is almost
always a preferred forum. However, most international forum shopping is motivated in the
US by a desire to take advantage of the procedural, not substantive, legal advantages that
the courts offer. See Daniel J. Dorward, The forum non conveniens doctrine and the judicial
protection of multilateral corporations from forum shopping plaintiffs, 19 U. Pa. J. Int'l Econ.
L. 141, 2(1998). See also David W. Robertson & Paula K. Speck, Access to State Courts in
Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 Tex.
L. Rev. 937, 938 (1990);George A. Bermann, The Use of Anti-Suit Injunctions in International
Litigation, 28 Colum. J. Transnat'l L. 589, 617 (1990).
2) Daniel Tan, supra note 1, 3.
3) There can be another occasion where the anti-suit injunction is not issued by the
competent court but by the arbitral tribunal. Although it has been very less often debated,
the question is whether arbitrators, when they are confronted with a party's attempt to
submit a dispute that is covered by an arbitration agreement to a domestic court—or
another arbitral tribunal — may issue an injunction to prohibit that party from escaping
the arbitration agreement. In other words, whether the arbitrators may issue anti-suit
injunctions? The issue is not within the scope of present inquiry and therefore is not further
proceeded with. For an understanding of arbitrators power to issue injunctions, see
Emmanuel Gaillard, Anti-suit Injunctions Issued by Arbitrators, available at
http://www.shearman.com/files/Publication/35f7fd87-ad7e-4c38-9c56-
8fe2d400410f/Presentation/PublicationAttachment/f5dfaabd-d06f-4c2c-9112-
95202f32762e/IA_Anti%20Suit%20Injunctions%20issued%20by%20Arbitrators_ICCA_040308
_13.pdf (last visited on November 2, 2011).
4) See generallyMargaret L. Moses, the Principles and Practice of International Commercial
Arbitration, 92 (2008).
5) Margaret Moses, Barring the Courthouse Door? Anti-Suit Injunctions in International
Arbitration, available at http://kluwerarbitrationblog.com/blog/2011/11/14/barring-the-
courthouse-door-anti-suit-injunctions-in-international-arbitration, (last visited on
November 16, 2011).
6) Daniel Tan, Anti-Suit Injunctions and the Vexing Problem of Comity, 45 Va. J. Int'l L. 283, 3
(2005). See also Eric Roberson, Comity Be Damned: The Use of Anti-Suit Injunctions Against
the Courts of a Foreign Nation, 147 U. Pa. L. Rev. 409, 413-14 (1998).
7) At the same time the issue of anti-suit injunction might arise in a proceeding where there is
no connection or relation with arbitration at all. For example in Modi Entertainment
Network and Anr v. WSG. Cricket PTE. Ltd, MANU/SC/0039/2003, AIR2003SC1177,
2003(1)ARBLR533(SC), 2003(1)CTC429, JT2003(1)SC382, (2003)2MLJ98(SC), 2003(1)SCALE388,
(2003)4SCC341, [2003]1SCR480, there were commercial disputes between Modi
Entertainment Network and Anr (in short ‘Modi Entertainment’) and WSG Cricket PTE. ltd (in
short ‘WSG’). Modi Entertainment filed a suit in the Bombay High Court whereas WSG also
subsequently filed an action in the High Court of Justice Queen's Bench Division, in UK.
Modi Entertainment took out motion in the Bombay High Court praying for anti-suit
injunction against the WSG in regard to the action in the English Court on the ground that
the Indian Court was a natural forum for the adjudication of the dispute and that
continuance of the proceedings in the English Court would, on the facts of the case, be
vexatious and oppressive.
8) Steven R. Swanson, Antisuit Injunctions in Support of International Arbitration, 81 Tul. L. Rev.
395, 2(2006).

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 9) For example in Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 335 F.3d 357; 2003 U.S. App. LEXIS 12267, the dispute originated with two power
plant construction contracts in Indonesia between private power development company
and a company wholly owned by the Indonesian government. When the Indonesian
government halted the construction, the private company sought arbitration in
Switzerland under the contract and was granted an award. The private company sought to
enforce the arbitration award in US district court, which granted a foreign antisuit
injunction against the Indonesian company's filing of an Indonesian action to block
enforcement of the award.; in Sabah Shipyard (Pakistan) Ltd v. Pakistan [2007] APP.L.R.
11/09, there were Power Purchase Agreement between Sabah and the Karachi Electricity
Supply Corporation which provided for any dispute to be settled by arbitration. Following
arbitration between Sabah and KESC, to which Government of Pakistan (GOP) was not a
party, the sole arbitrator, issued an Interim Award, which he confirmed in a Final Award
(“the Tompkins Award”). Later on Sabah made a demand on KESC to honor the Award but
KESC failed to do so. GOP had issued proceedings in the Court of the Senior Civil Judge in
Islamabad seeking to avoid the Tompkins Award claiming that it was invalid on the ground
of fraud in its procurement and seeking a permanent injunction restraining Sabah from
making any demands under the guarantee. Subsequently, the English Court had made an
ex parte order restraining GOP from pursuing proceedings designed to stay Sabah's claim
under the guarantee otherwise than in the English Courts.

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 10) Id; 2. There can be another situation where a party, asserting that it has not agreed to
arbitrate, seeks to enjoin the other party from proceeding with arbitration. This is
sometimes referred to as an “anti-arbitration injunction.” However, there are some strong
arguments as well as sentiments against the very concept of anti-arbitration injunction
which inter alia runs as follows:
( In case of international commercial arbitration, the national courts have only a limited
i role to play under the New York Convention. As a general rule, court action can only be
) based on Art. II(3) of the New York Convention, which directs national courts to refer
parties to arbitration whenever the disputed subject matter is covered by a valid
arbitration agreement. The object and purpose of the New York Convention are
defeated by anti-arbitration injunctions which aim to suspend the arbitration process
where there is an arbitration agreement.
( There again the New York Convention says nothing about the extent of review of the
i court when examining the validity of an arbitration agreement nor does it say when a
i party may bring the matter before the court. Moreover, in some arbitral friendly
) jurisdiction like France, Art. 1458 of the French Code of Civil Procedure provides that a
state court shall declare itself incompetent when a dispute is pending before an
arbitral tribunal as well as when the dispute has not yet been brought before the
arbitral tribunal, except in the latter case if the arbitration agreement is manifestly
null and void. In the arbitration and Conciliation Act, 1996 in India, section 45 mutatis
mutandis provides that judicial authority, when seized of an action in a matter in
respect of which the parties have made an agreement shall, at the request of one of the
parties or any person claiming through or under him, refer the parties to arbitration,
unless it finds that the said agreement is null and void, inoperative or incapable of
being performed.
( The doctrine of competence/competence is recognized in India under section 16 of the
i Arbitration and Conciliation Act, 1996 which Says that “the arbitral tribunal may rule on
i its own jurisdiction, including ruling on any objections with respect to the existence or
i validity of the arbitration agreement …”. The negative effect of the doctrine of
) competence-competence in particular prohibit any full-fledged examination of the
validity of an arbitration agreement by state courts and impose on them an obligation
to refer parties to arbitration in this regard. One reason is that prima facie the arbitral
tribunal should have priority to decide any question regarding jurisdiction. Second,
that state courts are precluded from making any determination concerning the
arbitration agreement other than a prima facie one before an award is made by the
arbitrators on their competence, their decision in that regard being then only open to
challenge for review by the state court. See also the French court judgment in 39. Cour
de Cassation, First Civil Chamber, 7 June 2006 no.T 03-12.034 (Copropriété Maritime
Jules Verne, et al. v. ABS— American Bureau of Shipping) Yearbook XXXII (2007) pp. 290-
293 (France no. 39) whereby the court inter alia held as follows:
“… the validity of international arbitration agreements and the principle that
arbitrators decide on their own jurisdiction are material rules of French law on
international arbitration. [These rules] confirm, on the one hand, the validity of
arbitration clauses independent of any reference to a national law and, on the other
hand, the efficacy of arbitration proceedings …”

Furthermore, the doctrine of separability needs to be considered in the context of anti-

arbitration injunction, (for Indian account of separability, see s. 16(1) (a) (b) of the
Arbitration and Conciliation Act, 1996), which says that that the validity, termination,
nullity of the contract does not vitiate the obligation to arbitrate. If this is the case, then
an anti-arbitration injunction is incompatible with the separability of the arbitration
agreement when such injunction is directed in certain circumstances like allegations of
corruption of the underlying contract and identical scenarios. See Dominique T. Hascher,
Arbitration and national Courts: Conflict and cooperation: injunctions in favor of and against
arbitration, 21 Am. Rev. Int'l Arb. 189, 2 (2010). See alsoIAI Series on International
Arbitration, No. 2 (Emmanuel Gaillard ed., 2005); Antonias Dimolitsa, Separability and
Kompetenz-Kompetenz, in improving the efficiency of arbitration agreements and awards: 40
years of application of the New York Convention, ICCA Congress Series, No. 9 (1999).
The courts should generally grant anti-arbitration injunctions when there is no agreement
to arbitrate at all, or when a party seeks to arbitrate in a venue not agreed upon by the
parties. SeeMargaret L. Moses, the Principles and Practice of International Commercial
Arbitration, 94 (2008); See also José Carlos Fernández Rozas, Anti-suit Injunctions Issued by
National Courts Measures Addressed to the Parties or to the Arbitrators, available at
http://eprints.ucm.es/9257/1/Anti-suit_Injunctions.pdf (last visited on January 13, 2012).

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 11) In Oil and Natural Gas Commission v. Western Company of North America, AIR1987SC674,
1987(1)ARBLR60(SC),JT1987(1)SC160,1987(1)SCALE67 (1987)1SCC496,1987(1)UJ543(SC), the
appellant Oil and Natural Gas Commission in short “ONGC” and the Respondent Western
Company of North America (herein after referred to as ‘Western company’) had entered
into a drilling contract. The contract provided for any differences arising out of the
agreement being referred to arbitration. The arbitration proceedings were to be governed
by the Indian Arbitration Act, 1940 read with the relevant rules. A dispute had arisen
between the parties. It was referred to two arbitrators and an umpire was also appointed.
The arbitrators entered on the reference in London which was the agreed venue for hearing
as per the arbitration clause contained in the contract. Later on the arbitrators informed
the umpire that they were unable to agree on the matters outstanding in the reference.
Consequently the umpire entered upon the arbitration and straightaway proceeded to
declare his non-speaking award (styled as interim award) without affording any hearing to
the parties on the matters outstanding in the reference. Thereafter, the Respondent i.e.,
the western company, requested the umpire to authorize to file the award in the
appropriate Court in India. Pursuant to the said authority the award rendered by the
umpire was lodged in the Bombay High Court and subsequently, the umpire rendered a
supplementary award relating to costs which has been termed as “final” award. About a
month after the lodging of the award in the High Court of Bombay by the umpire at the
instance of the respondent, western company, the latter lodged a plaint in the US District
Court, inter alia, seeking an order (i) confirming the two awards rendered by the Umpire (ii)
a judgment against the ONGC, in the amount of USD 256,815.45, by way of interest until the
date of the Judgment and costs etc. The appellant, ONGC prayed for an interim order
restraining Western Company from proceeding further with the action instituted in the US
Court.
12) Kathryn E. Vertigan, Foreign Antisuit Injunctions: Taking a Lesson from the Act of State
Doctrine, 76 Geo. Wash. L. Rev. 155, 161 (2007).
13) Id; 161.
14) Moser Baer India Ltd v. Koninklijke Philips Electronics NV. and Ors, MANU/DE/0633/2008,
2008(1)CTLJ421(Del), 151(2008)DLT180, 2008(102)DRJ713 (Reference to para. 7).
15) Id.
16) Id.
17) Modi Entertainment Network and Anr v. WSG Cricket PTE. Ltd. MANU/SC/0039/2003,
AIR2003SC1177, 2003(1)ARBLR533(SC). (reference to Para 11 of the judgment).
18) For example in Board of Control for Cricket in India v. Essel Sports Pvt. Ltd. and Ors,
MANU/DE/0285/2010, 167(2010)DLT176, The Delhi High Court has inter alia observed as
follows: “… wherein an Indian court is approached by a party for a stay of its own
proceedings it necessarily delves into issues such as: forum convenience, that is, which
would be the appropriate forum; the Indian Court or the Foreign Court; the jurisdictional
clause as to the choice of court in the event the dispute emanates from a contract; and in
some cases it is called upon to deal with an arbitration agreement obtaining between the
parties. Therefore, in such a situation in a sense it is the court which determines the
appropriateness of the forum by deciding whether or not it should cede jurisdiction over a
matter in preference to a foreign court. In determining, which would be the appropriate
forum, that is, Indian court or the foreign court it necessarily takes into account the forum
with which the dispute has a ‘real’ and ‘substantial’ connection …”
19) Id; It is interesting to note here that even the doctrine of forum non conveniens is
applicable in case where the Code of Civil Procedure, 1908 has its application. The Delhi
High Court in Glaxosmithkline Consumer Healthcare Limited and Horlicks Limited and Anr
v. Heinz India (P) Limited,.inter alia held that s. 20 of the Code gives dominus litis to the
plaintiff to file a suit in the courts located at a place where defendant resides or works for
gain or where the cause of action, partly or wholly arises. However, it is also equally well
settled that in spite of s. 20 of the Code, parties by a contract can confer sole or exclusive
jurisdiction to courts at one location which otherwise has jurisdiction and exclude
jurisdiction of other courts. In other words, it is accepted that s. 20 of the Code does not
bar or prohibit parties from entering into a contract or mutual understanding that courts
only at a particular location will have exclusive jurisdiction to decide the disputes and
oust jurisdiction of courts located at other locations. The only condition is that the
exclusive or the sole Court should otherwise have territorial jurisdiction to decide the
disputes in terms of s. 20 of the Code. So it cannot be said that the principle of “forum non-
conveniens” is alien, barred or prohibited by s. 20 the Code. Section 20 of the Code
indicates and specifies the courts which can have jurisdiction. Principle of “forum non-
conveniens” does not confer jurisdiction on a court contrary to s. 20 of the Code but applies
when a court otherwise has jurisdiction but for valid, sound and good reasons does not wish
to entertain a suit. See also Shipping Corporation of India Limited v. Machado Brothers,
MANU/SC/0276/2004: AIR2004SC2093; Ram Chand and Sons Sugar Mills (P) Limited v.
Kanaihya Lal Bhargav, MANU/SC/0263/1966: [1966]3SCR856; A.B.C. Laminart v. A.P. Agencies
reported in MANU/SC/0001/1989: [1989]2SCR1a); Kusum Ingots and Alloys v. Union of India
reported in MANU/SC/0430/2004: 2004(186)ELT3(SC); Mayar (H.K.) Ltd. v. Owners and
Parties, Vessel M.V. Fortune Express MANU/SC/8083/2006: AIR2006SC1828.
20) Id.
21) David Joseph Q.C, Jurisdiction and Arbitration Agreements and their Enforcement
286(2010).

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 22) See generally David Joseph Id; 286. See also Modi Entertainment Network and Anr v. WSG.
Cricket PTE. Ltd. MANU/SC/0039/2003: AIR2003SC1177; Oil and Natural Gas Commission v.
Western Co. of North America MANU/SC/0014/1987: [1987]1SCR1024; British India Steam
Navigation Co. Ltd. v. Shanmughavilas Cashew Industries MANU/SC/0467/1990:
1990(48)ELT481(SC). For example the Supreme Court in A. B. C Laminart v. A.P. Agencies,
MANU/SC/0001/1989: [1989]2SCR1, inter alia decided that in case an ouster clause
contained the words “alone”, “only”, “exclusive” and the like, there would be difficulty in
construing the same as restricting jurisdiction to one court and excluding jurisdiction with
regard to other courts. But this does not mean that a clause which does not contain the
words like “alone”, “only”, “sole” or “exclusive” would not, under any circumstance, amount
to an ouster clause or grant exclusivity of jurisdiction to a particular court or courts. In fact,
the Supreme Court noted that even without such words, in appropriate cases, the maxim
“expressio unius est exclusio alterius”— expression of one is the exclusion of another—may
be applied.
23) Moser Baer India Ltd supra note 1, (reference to Para 21). See also A. B. C Laminart v. A.P.
Agencies, MANU/SC/0001/1989: [1989]2SCR1.
24) It is interesting to note that in sharp contrast with the anti-suit injunction concept, the
doctrine of ‘forum non conveniens' is the basis on which a court may dismiss a lawsuit in
favor of a forum it believes to be more appropriate. The doctrine originated in Scotland as
a way to curb plaintiffs' use of jurisdictional rules to force foreigners into Scottish courts. It
was later imported to the US for similar purposes, but has evolved to provide for dismissal
even when the chosen forum is inappropriate simply because of the court's own
administrative or legal problems. Forum non conveniens has also been accepted as a
doctrine in India and Britain. However, it is not well received, in most European and civil
law jurisdictions. See generally Jody W. Kerwin, A Choice of Law Approach for International
Antisuit Injunctions, 81 Tex. L. Rev. 927, 1-2(2003); See also Peter J. Carney, International
Forum Non Conveniens: “Section 1404.5” - A Proposal in the Interest of Sovereignty, Comity,
and Individual Justice, 45 Am. U. L. Rev. 415, (1995).
25) Jody W. Kerwin, A Choice of Law Approach for International Antisuit Injunctions, 81 Tex. L.
Rev. 927, 1-2(2003).
26) Andrew Bell, Forum Shopping and Venue in Transnational Litigation 172 (2003) as cited in
Daniel Tan, Anti-Suit Injunctions and the Vexing Problem of Comity, 45 Va. J. Int'l L. 283, 3
(2005).
27) Id; 3.
28) The courts have the power to punish for contempt of those courts in India. The Contempt of
Court Act, 1971 was enacted to provide a legislative framework for contempt of court in
India. Apart from that there is constitutional empowerment under Arts 129 and 215 which
empowers the Supreme Court and High Court respectively to punish people for their
respective contempt. Section 10 of The Contempt of Courts Act, 1971 defines the power of
the High Court to punish contempt of its subordinate courts. For more detailed discussion
on contempt of courts in India see Dulal Chandra Bhar v. Sukumar, AIR 1958 Cal 474; Bathina
Ramakrishna Reddy v. state of Madras, AIR 1952 SC 149; Ukkan Chakku Thomas v.
Thomokutty, AIR 1952 Trav-Co 113 (FB); Advocate General, Andhra Pradesh v. Abbaraju
Ramarao, AIR, 1968 AP 207 (DB).
29) Jody W. Kerwin,supra note 8, 2.
30) It is interesting to note the English position on anti suit injunction which was summarized
by the House of Lords in Airbus Industries GIE v. Patel and Ors. (1998) 2 All ER 257 whereby
the court mutatis mutandis held as under:
“… As a general rule, before an anti-suit injunction could be granted by an English Court to
restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that
the English forum should have a sufficient interest in, or connection with, the matter in
question to justify the indirect interference with the foreign court which such an injunction
entailed. However, in cases where the conduct of the foreign state exercising jurisdiction
was such as to deprive it of the respect normally required by comity, no such limit was
required in the exercise of the jurisdiction to grant an anti-suit injunction …”
Halsbury's Laws of England Vol. 24, para. 1039 page 579 reads as under:
With regard to foreign proceedings the court will restrain a person within its jurisdiction
from instituting or prosecuting proceedings in a foreign court whenever the circumstances
of the case make such an interposition necessary or expedient. In a proper case the court
in this country may restrain person who has actually recovered judgment in a foreign court
from proceeding to enforce that judgment. The jurisdiction is discretionary and the court
will give credit to foreign courts for doing justice in their own jurisdiction.
31) Modi Entertainment Network and Anr v. WSG Cricket PTE. Ltd, AIR2003SC1177,2003(1)
ARBLR533(SC),2003(1)CTC429,JT2003(1)SC382 (2003)2MLJ98(SC),2003(1)SCALE388
(2003)4SCC341, [2003]1SCR480 (reference to Para 10 of the judgment).
32) Interestingly, the High court of Punjab and Haryana in Rakesh Kumar v. Ashima,
AIR2007P&H63 held to the contrary whereby the court said that ‘court had no jurisdiction
to grant interim injunction restraining a person from instituting any proceeding in Court not
subordinate to that from which injunction is sought, foreign court cannot be treated as a
Court subordinate to trial court Hence, injunction cannot be granted in terms of s. 41(a) and
(b) of the Specific Relief Act.

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 33) The Delhi High Court in M/s Swati Aluminium Ltd & Ors v. M/s Mullins Steerings Gears &Ors,
CS (OS) No.1705 of 2002, also clarified the issue in case of domestic anti-suit injunction
holding that the parties are not precluded from conferring exclusive jurisdiction on any
Court which would be one of the Courts having territorial jurisdiction to try and determine
the suit. The bar comes into play only on conferring the jurisdiction on a Court which has no
jurisdiction in respect of the subject matter. The exception to this is where parties agree to
confer jurisdiction on a foreign court in a neutral territory.
The court also went on to say that “… .the courts in India have been granted exclusively
jurisdiction in the matter, especially where the court is at least one such court of a
competent jurisdiction, then an anti suit injunction must necessarily follow. The exception
to this would be where the other party is still able to establish that the forum of choice is
not forum conveniens, the proceedings are oppressive and vexatious, but on the condition
that the parties so contending would have to prove the same …”
34) Oil and Natural Gas Commission v. Western Company of North America,
MANU/SC/0014/1987, AIR1987SC674, 1987(1)ARBLR60(SC), JT1987(1)SC160, 1987(1)SCALE67,
(1987) 1SCC496, [1987]1SCR1024, 1987(1)UJ543(SC) (Reference to para. 18 of the judgment).
35) See generally George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation,
28 Colum. J. Transnat'l L. 589, 604 (1990).
36) See the Supreme Court decision in Venture Global Engineering v. Satyam Computer
Services Ltd. and Anr AIR2008SC1061, 2008(2)ALD46(SC), 2008(3)ALLMR(SC)416,
2008(1)ARBLR137(SC), 2008BusLR102(SC), (2008)1CompLJ224(SC), 2008(1)CTC348,
JT2008(1)SC468, 2008(4)MhLj579, (2008)2MLJ289(SC); Satya v. Teja Singh, 1975 AIR 105, 1975
SCR (2) 97.
37) Under the Constitution of India, Arts 73 and 246(1) read in conjunction with the relevant
items provided in the Union List, give the executives all the powers necessary to negotiate,
enter into and ratify treaties.
Art. 73 of the Constitution of India inter alia reads:
Extent of Executive power of the Union
( Subject to the provisions of this Constitution, the executive power of the Union shall
1 extend
) ( to the matters with respect to which Parliament has power to make laws; and
a
)
( to the exercise of such rights, authority and jurisdiction as are exercisable by the
b government of India by virtue of any treaty on agreement: Provided that the
) executive power referred to in sub clause (a) shall not, save as expressly provided
in this constitution or in any law made by Parliament, extend in any State to
matters with respect in which the Legislature of the State has also power to make
laws.

Art. 246(1) of the constitution of India reads:

Subject matter of laws made by Parliament and by the Legislatures of States
( Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to
1 make laws with respect to any of the matters enumerated in List I in the Seventh
) Schedule (in this Constitution referred to as the Union List).
38) Article 261 in The Constitution of India reads as under:
Public acts, records and judicial proceedings-
( Full faith and credit shall be given throughout the territory of India to public acts,
1 records and judicial proceedings of the Union and of every State
)
( The manner in which and the conditions under which the acts, records and proceedings
2 referred to in clause (1) shall be proved and the effect thereof determined shall be as
) provided by law made by Parliament.
( Final judgments or orders delivered or passed by civil courts in any part of the territory
3 of India shall be capable of execution anywhere within that territory according to law.
)
39) See generally George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation,
28 Colum. J. Transnat'l L. 589, (1990).
40) [1987]1SCR1024.
41) AIR2003SC1177, 2003(1)ARBLR533(SC), 2003(1)CTC429, JT2003(1)SC382 (2003)2MLJ98(SC),
2003(1)SCALE388, (2003)4SCC341, [2003]1SCR480.

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 42) There is little or no guidance from Indian decisions as to what constitutes personal
jurisdiction and its ambit. However, in this regard, the US Supreme Court's due process
analysis can be referenced; under which personal jurisdiction may be either specific or
general. Specific jurisdiction exists when the dispute relates to a defendant's contacts with
the forum. General jurisdiction, by contrast, occurs when a defendant's contacts with a
forum state are of such significance that a court has authority over that defendant for any
dispute, regardless of whether or not it arises out of contacts to the forum. Under the due
process analysis, in cases of specific jurisdiction, the defendant has “certain minimum
contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” As a result of that cases brought under specific
jurisdiction present little opportunity for illegitimate forum shopping because the
controversy must have at least “minimum contacts” to the forum. General jurisdiction
poses even greater opportunities for abuses in forum shopping because the dispute may
have no connection to the defendant's activities within the forum state.
Interestingly, US courts have significantly expanded the standards for in personam
jurisdiction as the Supreme Court has moved away from strict territorial limits on
jurisdiction and towards the more generous “minimum contacts” approach employed in
International Shoe Co. v. Washington, 326 U.S. 310 (1945). Expansion of jurisdiction has
provided international forum shoppers with a greater opportunity to find at least one US
court with jurisdiction over a given defendant. In addition, these liberalized jurisdiction
rules have increased the range of forum choices within the federal system and the
opportunity of finding a particularly favorable US court. See Daniel J. Dorward, The forum
non conveniens doctrine and the judicial protection of multilateral corporations from forum
shopping plaintiffs, 19 U. Pa. J. Int'l Econ. L. 141, 2-3 (1998). See also Friedrich K. Juenger,
Forum Shopping, Domestic and International, 63 Tul. L. Rev. 553, 556 (1989); Cedric Ryngaert,
Jurisdiction in International Law, 12 (2008);Geoffrey C. Hazard, Jr. et al., Cases and Materials
on Pleading and Procedure, State and Federal 212 (1994); Gray v. American Radiator &
Standard Sanitary Corp., 22 Ill. 2d 432 (1961); Perkins v. Benguet Consol. Mining Co., 342 U.S.
437, 438, 445 (1952).
43) At this point, it is interesting to note the object of injunction set forth by the court in Union
of India (UOI) v. Bakhshi Amrik Singh, MANU/PH/0028/1963, AIR1963P&H104, (1962)ILR
2Punjab and Haryana597, whereby the court observed inter alia as under:
“It is not a violation of every legal right which justifies the grant of an injunctive remedy. A
party seeking such a relief may be precluded by reason of his own conduct from resorting
to this remedy. There must be, some equitable ground for interference by injunction such
as a necessity of preventing irreparable mischief, or, in cases when the injury apprehended
is of a character as cannot be adequately compensated by damages, or, is one which must
occasion constantly recurring grievance which necessitates a preventive remedy in order
to put an end to repeated perpetration of wrongs. This power has to be exercised sparingly
and cautiously and only after thoughtful deliberation and with a full conviction on the part
of the Court of its urgency and necessity.
Courts issue injunctions where the right which is sought to be protected is clear and
unquestioned, and not, where the right is doubtful and there is no emergency, and further,
where the injury threatened is positive and substantial and is irremediable otherwise. It is
also an important rule that the conduct of the parties seeking injunction must not be
tainted with unfairness or sharp practice.
The principal function of an injunction is to furnish preventive relief against irremediable
mischief. An injury is deemed to be irreparable and the mischief is said to be
irremediable, when, having regard to the nature of the act and from the circumstances
relating to the threatened harm, the apprehended damage cannot be adequately
compensated with money”.

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© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 44) It is interesting to note that though it may not be possible to define as to what constitute
vexatious and oppressive proceedings, reference can be taken from Sabah Shipyard
(Pakistan) Ltd. v. Pakistan [2002] APP.L.R. 11/14, which can be seen as an indicative factor.
In the instant matter, Sabah was a limited company incorporated in Pakistan by its
Malaysian parent for the sole purpose of entering into certain agreements with the
government of Pakistan and a state-owned corporation, the second defendant, the Karachi
Electrics Supply Corporation Limited (KESC). Various agreements were signed including the
Power Purchase Agreement (the PPA) between Sabah and KESC whereby the government of
Pakistan also entered into a guarantee in favor of Sabah. Jurisdiction clause of the same
guarantee (clause 1.9.1) provided that: “.… Each Party consents to the jurisdiction of the
Courts of England for any action filed by the other Party under this Agreement to resolve any
dispute between the Parties and may be enforced in England except with respect to the
Protected Assets, as defined in the Implementation Agreement of the Guarantor.” Disputes
arose between the parties and later on Sabah commenced arbitrations against the GOP as
well as against KESC under the PPA. The arbitration under the PPA took place in Singapore,
and the arbitrator, made an award in Sabah's favor. GOP issued proceedings in the Court of
the Senior Civil Judge, Islamabad, describing the proceedings as “Suit for a declaration &
permanent injunction” and the court had issued an interim injunction ex parte saying that
“until the next date of hearing defendant is hereby restrained to demand/recover any
amount from the plaintiff on the basis of guarantee.” Subsequently Sabah made their
application to the English court as a neutral forum. David Steel J while holding that the
proceedings in Pakistan were vexatious and oppressive said in his conclusion that: “The
claimants, I conclude, have fully made good their case that the proceedings in Pakistan are
oppressive and vexatious. The defendants have no legitimate interest in invoking Pakistan
jurisdiction. It is, as I see it, a transparent device to seek to avoid liability under the
guarantee by reference to defences which have little merit and that, in any event, are
governed by English law. Furthermore they are being advanced in an inconvenient
jurisdiction, and certainly not a neutral one, all in the context of an agreement in clause
1.9.3 not to object to English jurisdiction on the grounds of inconvenience.”
45) Reference to Para 28 of the judgment.
46) David Joseph Q.C, Jurisdiction and Arbitration Agreements and their Enforcement
380(2010).
47) Id; 380.
48) See generally Steven R. Swanson, Antisuit Injunctions in Support of International Arbitration,
81 Tul. L. Rev. 395, 2(2006); See also Steven R. Swanson, The Vexatiousness of a Vexation
Rule: International Comity and Antisuit Injunctions, 30 Geo. Wash. J. Int'l L. & Econ. 1, (1996).
49) In US, the Supreme Court has defined “comity” as “the recognition which one nation allows
within its territory to the legislative, executive or judicial acts of another nation, having
due regard both to international duty and convenience, and to the rights of its own citizens
or of other persons who are under the protection of its laws.” Hilton v. Guyot, 159 U.S. 113,
164, 40 L. Ed. 95, 16 S. Ct. 139 (1895). It was acknowledged in HANS A. QUAAK ET AL., v.
KLYNVELD PEAT MARWICK GOERDELER BEDRIJFSREVISOREN, 361 F.3d 11; 2004 U.S. App.
LEXIS 4352, that comity is an elusive concept …whatever definition is employed, it is
pellucid that comity is not a matter of rigid obligation, but, rather, a protean concept of
jurisdictional respect. And to complicate matters, comity, like beauty, sometimes is in the
eye of the beholder.
50) Brain Pearce, The Comity Doctrine as a Barrier to Judicial Jurisdiction: A U.S.-E.U. Comparison,
30 Stan. J Int'l L.525, 2 (1994). See also Ernest G. Lorenzen, Huber’s De Conflictu Legum, 13 Ill.
L. Rev. 375, 378 (1919).
51) Id; 2.
52) At times, the parties take different positions whether their underlying dispute is in fact
arbitrable i.e. whether the arbitration agreements come into existence; whether, if it did
come into existence, it is valid; whether a particular issue is within the agreement's scope.
These are the three fundamental issues of “arbitrability”: existence, validity and scope of
the arbitration agreement. Those issues together constitute ‘ordinary arbitrability’. See
generallyContemporary Issues in International Arbitration and Mediation, 111-112 (Arthur W.
Rovine ed., 2007).
53) Grace Gunah Kim, After the ECJ’S west tankers: the clash of civilizations on the issue of an
anti-suit injunction, 12 Cardozo J. Conflict Resol. 573, 2(2011). See alsoContemporary Issues in
International Arbitration and Mediation: The Fordham Papers 2007 (Arthur W. Rovine ed.,
2008).

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 54) Article II of the New York Convention provides as under:
1 Each Contracting State shall recognize an agreement in writing under which the parties
. undertake to submit to arbitration all or any differences which have arisen or which
may arise between them in respect of a defined legal relationship, whether contractual
or not, concerning a subject matter capable of settlement by arbitration.
2 The term “agreement in writing” shall include an arbitral clause in a contract or an
. arbitration agreement, signed by the parties or contained in an exchange of letters or
telegrams.
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.
At the same time, it is evident from the preceding section that obligation is subject to two
qualifications. The first is under Art. II (3) that the court is under no obligation to refer the
parties to arbitration, where it finds that the said agreement is null and void, inoperative
or incapable of being performed and second, under Art. II (1) which is mainly based on
public policy ground i.e. “a subject matter capable of settlement by arbitration.”

55) Grace Gunah Kim supra note 39, 2. Interestingly, even under the Foreign Awards
(Recognition And Enforcement) Act, 1961in India which was subsequently repelled by the
Arbitration and Conciliation Act, 1996, supported the stay of proceeding of the court where
there is an arbitration agreement to fulfill the requirement of Art. II of the Convention.
Section 3 reads as follows:
Stay of proceedings in respect of matters to be referred to arbitration.
Notwithstanding anything contained in the Arbitration Act, 1940-, or in the Code of civil
Procedure, 1908-, if any party to an agreement to which Article II of the Convention set forth
in the Schedule applies, or any person claiming through or under him commences any
legal proceedings in any court against any other party to the agreement or any person
claiming through or under him in respect of any matter agreed to be referred to arbitration
in such agreement, any party to such legal proceedings may, at any time after appearance
and before filling a written statement or taking any other step in the proceedings, apply to
the court to stay the proceedings and the court, unless satisfied that the agreement is null
and void, in operative or incapable of being performed or that there is not. in fact, any
dispute between the parties with regard to the matter agreed to be referred, shall make an
order staying the proceedings.)
56) See generally Daniel Tan, Anti-Suit Injunctions and the Vexing Problem of Comity, 45 Va. J.
Int'l L. 283, 11 (2005).
57) Id; 12.
58) MANU/DE/0285/2010, 167(2010)DLT176.
59) In the instant case, Essel Sports Pvt. Ltd (ESPL) brought an action against the Board of
Control for Cricket in India (BCCI) in Indian court inter alia alleging that the BCCI has
illegally refused to recognize the Indian Cricket League which is conceived, promoted,
managed and controlled by ESPL as the organizer of official cricket. While the action was
pending in Indian court, ESPL send a notice to BCCI stating its intention to initiate
proceedings against it in the courts of England and Wales. Notices were also sent to the
ECB and the ICC intending to make them co-defendants in the proceedings. BCCI has
sought an anti-suit injunction against ESPL from the Delhi High Court so that ESPL could not
proceed with the subject matter of the suit that was already pending before the Delhi High
Court.
60) [1985] A.C. 58.
61) (1986) 1 Q.B. 689.
62) 1987 AC 871. In the instant case, Lord Goff observed inter alia as follows:
“… The decided cases, stretching back over a hundred years and more, provide however a
useful source of experience from which guidance may be drawn. They show, moreover,
judges seeking to apply the fundamental principles in certain categories of case, while at
the same time never asserting that the jurisdiction is to be confined to those categories …”
63) House of Lords in the case of South Carolina Insurance Co. v. Assurantie NV 1987 AC 24
where it expounded that an anti-suit injunction will issue only in three situations. These
were categorized as: (a) where there are two or more forums available (one of which is a
domestic forum) (b) where a party invades or threaten to invade the legal and equitable
right of the other party not to be sued in a foreign court (c) where instituting proceedings
abroad would be unconscionable.
64) Id.

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 65) Section 10 of CPC reads as follows:
Stay of suit.-
No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or
between parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of India established or
continued by the Central Government and having like jurisdiction, or before the Supreme
Court.
Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in
India from trying a suit founded on the same cause of action.

66) The court took the help from earlier precedents to determine what constitutes “same
parties”(Shorab Merwanji Modi and Anr v. Mansata Film Distributors and Anr
MANU/WB/0188/1957: AIR 1957 Cal 727; Gupte Cardiac Care Centre and Hospital v. Olympic
Pharma (P) Ltd MANU/SC/0313/2004: (2004) 6 SCC 756).) Whereby courts observed that
same parties means “the parties as between whom the matter, substantially in issue has
arisen, has to be decided”. The complete identity of either the subject matter or the
parties is not required.
67) For example in the US decision in HANS A. QUAAK ET AL., V. KLYNVELD PEAT MARWICK
GOERDELER BEDRIJFSREVISOREN, 361 F.3d 11; 2004 U.S. App. LEXIS 4352. According to the
court “If – and only if – this threshold condition is satisfied should the court proceed to
consider all the facts and circumstances in order to decide whether an injunction is
proper. In this analysis, considerations of international comity must be given substantial
weight – and those considerations ordinarily establish a rebuttable presumption against
the issuance of an order that has the effect of halting foreign judicial proceedings.” See
also George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28
Colum. J. Transnat'l L. 589, 626 (1990) whereby it was inter alia stated that courts generally
“will not consider issuing anti-suit injunctions” unless there are “parallel local and foreign
actions between the same parties over the same claim”.
68) The court has referred the observations raised in Shorab Merwanji Modi and Anr v. Mansata
Film Distributors and Anr MANU/WB/0188/1957: AIR 1957 Cal 727; Gupte Cardiac Care Centre
and Hospital v. Olympic Pharma (P) Ltd MANU/SC/0313/2004: (2004) 6 SCC 756).
69) See generally Daniel Tan, Anti-Suit Injunctions and the Vexing Problem of Comity, 45 Va. J.
Int'l L. 283, 11 (2005).

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