207 / 522
practice, since the aim is to realize an arbitration agreement between
the parties.
In practice, parties who disregard the arbitration clause, or attempt
to pressure the other party may initiate parallel court proceedings in
breach of the arbitration agreement. Parallel court proceedings that are
initiated in breach of an arbitration agreement could frustrate the on-
going arbitration, since they use resources in time and expense, which
leads to re-litigating the same issue, as well as preventing the enforce-
ment of the final award of the arbitral tribunal
3
.
National Court Practices on Anti-Suit Injunctions
Court practices regarding anti-suit injunctions differ for common
law jurisdictions and civil law jurisdictions.
English courts state that on the condition that they have jurisdic-
tion over the defendant, an anti-suit injunction may be granted if there
is a valid arbitration agreement, the application is made without undue
delay, the foreign action is not well-advanced, and there is no other
reason why the injunction should be granted
4
.
With regard to US courts, the standard to be met under the US
approach is the determination of “irreparable harm,” and the courts
take into consideration the stage of the foreign proceedings, as well as
the parties’ expectation to litigate in that particular court
5
.
On the other hand, civil law jurisdictions have considered anti-suit
injunctions to be an intrusion into their jurisdiction. For instance, in the
decision of
Oberlandesgericht Düsseldorf
dated January 10
th
, 1996,
IPRax 245 (1997), the German court refused to serve a judgment of an
anti-suit injunction based on the public policy exception under the
Convention of 15 November 1965 on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters.
With regard to European Union Law, the European Court of
Justice (“the Court”) opined that member states should not issue
ARBITRATION LAW
191
3
Lew-Mistelis-Kröll
, p. 363.
4
Lew-Mistelis-Kröll
, p. 365.
5
Lew-Mistelis-Kröll
, p. 366.