Academic journal article Texas Law Review

A Choice of Law Approach for International Antisuit Injunctions

Academic journal article Texas Law Review

A Choice of Law Approach for International Antisuit Injunctions

Article excerpt

A Choice of Law Approach for International Antisuit Injunctions,

I. Introduction

Parties who wish to avoid involvement in a lawsuit with international connections commonly apply for an antisuit injunction in some other forum; their only other viable option being to petition for a dismissal for forum non conveniens in the forum where the suit has been initiated. When faced with a request for an antisuit injunction against a plaintiff who has sued in a foreign forum, an American or British court will decide the issue based on its own view of the equities. This practice of automatically applying forum equity is arguably anomalous in common law jurisprudence, given that in any other action having international elements, a choice of law analysis would be an integral step in the proceedings.

The issue of antisuit choice of law is especially relevant given the current split in antisuit philosophy among the American federal courts of appeals.1 This Note argues that, in order to promote international comity, British and American courts-and in fact all common-law courts-should first carry out a choice of law analysis to decide which equitable principles govern the grant or denial of an international antisuit injunction. In particular, Part II describes the existing doctrines employed by American and British courts when parties seek to quash proceedings brought against them in foreign countries. Part III shows that the existing antisuit methodologies of the British courts and American federal courts are flawed, both procedurally and as a matter of comity. Part IV demonstrates that a choice of law approach would ameliorate the troubles caused by differing views of equity and home-forum bias under the current system. Part V proposes a new antisuit analysis that procedurally implements elements of the existing British and American methodologies and substantively borrows from the doctrines of forum non conveniens and lex loci delicti to create a choice of law step. That is, if the forum where the lawsuit was instituted embraces forum non conveniens, the choice of law should follow from those principles. Otherwise, it should be based on principles of lex loci delicti. This last part also rebuts some of the anticipated arguments against choice of law in the antisuit context. IMAGE FORMULA10IMAGE FORMULA11

II. American and British Approaches: Antisuit Injuctions, Forum Non Conveniens, and International Comity

A. Antisuit Injunctions

An antisuit injunction can be a powerful tool for a party seeking to avoid a lawsuit that has been commenced abroad. The remedy consists of a court issuing an injunction prohibiting a party from bringing or continuing a lawsuit in another country.2 The paradigm situation is this: an American citizen named as a defendant in a lawsuit in a British court asks a federal court for an injunction calling for the plaintiff to dismiss him as a defendant.3 The injunction does not restrain the foreign court directly, as it only operates in personam-thus, the issuing court must have personal jurisdiction over the foreign plaintiff before it can grant this relief.4 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, or alternatively, the issuing court may refuse to recognize any foreign judgment obtained by the plaintiff.5

American methodology for considering motions for antisuit injunctions is not uniform. In fact, the federal appellate courts apply two different approaches. Approximately half of the circuit courts employ the "conservative" approach. Under this approach, the court will not issue an antisuit injunction unless it is necessary to protect the American court's jurisdiction or to prevent the plaintiff from evading important public policies of the American court. …

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