Lloyd's Maritime and Commercial Law Quarterly
THE UNRESTRAINED REACH OF AN ANTI-SUIT INJUNCTION: A PAUSE FOR THOUGHT
Adrian Briggs *
The law on anti-suit injunctions is open to the criticism that English rules on whether foreign litigation is wrongful are sometimes applied as if it were obvious that this is a question to which foreign law has no relevance. But there ought to be, and probably is, a choice of law question which should be answered before any application of English procedural law on injunctions arises. This short paper attempts to identify where the courts may have overlooked the need to apply choice of law rules to the issue; and what might follow from the acceptance that such rules should be applied.
The law on anti-suit injunctions continues to develop, but not always predictably. From one point of view, until this potent remedy has been woven seamlessly into the fabric of the conflict of laws, it will continue to cause uncertainty. But others may consider this the wrong perspective altogether: for them, it may be necessary to ask whether the power to grant anti-suit injunctions is to be seen as part of the conflict of laws at all or, instead, as something which overrides the general principles of the conflict of laws. The decision of the Court of Appeal in Airbus Industrie G.I.E. v. Patel
1 provides a timely excuse for a sideways look at two broader questions relating to anti-suit injunctions, lurking in the wings, but hitherto shy of appearing on centre stage. This paper is too long to pass itself off as a case note, but it does not claim to have all the answers (nor, perhaps, to have seen all the questions) either. It is nevertheless rooted in the issues neatly raised by Airbus v. Patel. So let us start with the facts of that case.
Airbus v. Patel
In the aftermath of an air accident at Bangalore Airport, proceedings were commenced by or on behalf of some of the victims. Though the operating airline was Indian, and though the aircraft had only ever been used in domestic Indian carriage; and though most of the plaintiffs were in some sense Indian,2 and though there were claims also against the airline and the airport operator, the proceedings instituted in India made only desultory progress. Rather than prosecute these with any vigour, the plaintiffs hit upon the scam of suing Airbus, the French corporation which had manufactured the aircraft, in Texas. Airbus applied to the English court for an injunction to restrain the continuation of the Texas
* Barrister, 2 Hare Court, Temple; Fellow of St Edmund Hall, Oxford. The comments of Edwin Peel are acknowledged with gratitude.
1. [1996] The Times, 12 August (C.A.: Nourse, Hobhouse and Aldous, L.JJ.).
2. Most of the victims were Indian by residence and nationality. The respondents to the present application were British citizens of Indian origin, who were holidaying or visiting relations in India.
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