Document type: Article Practice area: Litigation — International Litigation Jurisdiction: United States (federal), with comparative notes Last reviewed: 5 September 2026

Two courts, one dispute

A US company and a German company fall out over a distribution agreement. The US company sues in the Southern District of New York. Three weeks later the German company sues in Düsseldorf, seeking a declaration that it owes nothing.

Both courts have jurisdiction. Neither is obliged to defer to the other. And there is no treaty allocating the case between them.

Within the European Union and in a number of other systems, a lis pendens rule solves this: the court second seised stays its proceedings until the first court decides whether it has jurisdiction, and the race to file determines the forum. The United States has no such rule — no international lis pendens, no treaty on parallel proceedings, and only the weakest doctrine of abstention.

So the two cases proceed simultaneously, and one of three things happens.

One court reaches judgment first, and that judgment is asserted as res judicata in the other. This is the race to judgment, and it explains a great deal of what litigants do in cross-border disputes.

One court stays or dismisses, on forum non conveniens or on a discretionary basis.

Or one court enjoins the party before it from prosecuting the foreign action — an anti-suit injunction.

What an anti-suit injunction is, and is not

It operates on the party, not the court. A US court has no power to order a German court to stop, and does not purport to. It orders the litigant before it — over whom it has personal jurisdiction — not to prosecute the foreign proceeding, on pain of contempt.

That distinction is formal and consequential. The foreign court is not bound and may take offence, but the party is bound, and a party that continues faces sanctions where its assets and its counsel are.

Two kinds:

  • Prohibitory — restraining the pursuit of a foreign action already commenced or threatened
  • Anti-anti-suit — restraining a party from seeking, or from enforcing, an anti-suit injunction abroad. These have proliferated, and the escalation is discussed below.

When they are sought:

  • A party has sued abroad in breach of a forum selection clause or an arbitration agreement
  • A party has filed a duplicative or reactive foreign action, frequently a declaratory action, to disrupt the first case
  • A foreign action threatens to frustrate the US court's ability to adjudicate — for example, by producing a foreign injunction against the US party
  • A foreign action would evade an important US policy or an order of the US court

The threshold: what every circuit requires

Before reaching the contested balancing, a court must find:

1. The parties are the same — or sufficiently so; complete identity is not always required, and courts look to whether the same interests are represented.

2. Resolution of the case before the enjoining court would be dispositive of the foreign action. This is the harder threshold and it defeats many applications. The domestic case must resolve the foreign one, not merely overlap with it. Where the foreign action raises claims or issues the US case will not decide, the threshold fails.

The framework comes from China Trade & Development Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1988), which set out these threshold requirements and the factors that follow.

Only if both are satisfied does the court consider whether to exercise its discretion — and that is where the circuits divide.

The split: liberal and conservative approaches

This is one of the sharper and more consequential circuit splits in federal practice, and the outcome of an application frequently depends on where it is made.

The conservative approach

Comity is the paramount consideration, and an injunction is appropriate only where the foreign action would threaten the enjoining court's jurisdiction or an important public policy of the forum.

Duplication, inefficiency, expense, and inconsistent results are not enough. The conservative view accepts that parallel proceedings are the ordinary consequence of a world with multiple sovereigns, and that a court should tolerate them.

Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984) is the foundational statement, in a case where an anti-suit injunction was issued to protect the court's jurisdiction against foreign proceedings designed to defeat it — the paradigm of the narrow ground.

Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349 (6th Cir. 1992) adopted the conservative approach expressly, holding that considerations of duplicative litigation and inconvenience are insufficient and that only a threat to jurisdiction or to strong public policy will do.

Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004) articulated a refined version: comity carries a rebuttable presumption against an injunction, which the movant must overcome by showing that the foreign action is vexatious or oppressive and that the equities favour relief. The First Circuit granted the injunction on the facts, where the foreign action had been filed to prevent the defendants from complying with US discovery obligations.

Goss International Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355 (8th Cir. 2007) applied the conservative approach and reversed an injunction against foreign proceedings under a clawback statute, emphasizing comity.

The liberal approach

Comity is one factor among several, and an injunction may issue where the foreign action would frustrate a policy of the forum, be vexatious or oppressive, threaten the court's jurisdiction, or where the equities favour it — including considerations of duplication, delay, expense, and the prospect of inconsistent judgments.

E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984 (9th Cir. 2006) applies this approach, examining whether the foreign litigation would frustrate a policy of the forum, whether it is duplicative and vexatious, and then whether the impact on comity is tolerable.

Paramedics Electromedicina Comercial, Ltda. v. GE Medical Systems Information Technologies, Inc., 369 F.3d 645 (2d Cir. 2004) upheld an anti-suit injunction restraining Brazilian proceedings brought in breach of an arbitration agreement, illustrating the strongest case for relief.

Where the arbitration and forum selection cases sit

The split matters least where there is an agreement. A party that has agreed to arbitrate, or to litigate in a chosen forum, and then sues elsewhere is breaching a contract, and courts in both camps grant injunctions readily.

The reasoning is that comity is not offended by enforcing the parties' own agreement — the foreign court is not being second-guessed; the party is being held to its bargain. And the federal policy favouring arbitration supplies the "important public policy" the conservative approach requires.

This is the single most important practical point in the area: an anti-suit injunction to enforce an arbitration agreement or an exclusive forum selection clause is a very different application, with a very different success rate, from one seeking to stop a merely duplicative foreign action.

Anti-anti-suit injunctions and the escalation problem

Where one court enjoins a party from proceeding abroad, the foreign court may enjoin the same party from seeking or enforcing that injunction. The result is a party under contradictory orders from two courts, each backed by contempt.

This has occurred with increasing frequency, particularly in disputes over standard-essential patents and fair, reasonable, and non-discriminatory licensing, where courts in several jurisdictions have issued anti-suit and anti-anti-suit injunctions against each other's proceedings.

Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012) is the leading US decision in that context. Motorola sought injunctive relief in Germany on standard-essential patents while a US action was pending to determine the FRAND rate for the same portfolio. The Ninth Circuit affirmed an anti-suit injunction, reasoning that the US action would determine Motorola's contractual obligations under its FRAND commitments and would therefore be dispositive of whether it was entitled to the German injunctive relief.

The practical consequences of escalation:

  • A party may face contradictory orders. Counsel must advise on which to obey, and the answer usually depends on where the assets, the personnel, and the enforcement risk are.
  • The dispute shifts from the merits to the procedural war, at very high cost.
  • Courts have become more cautious, aware that an injunction invites a counter-injunction.
  • Some jurisdictions have legislated, providing expressly for anti-anti-suit relief or restricting foreign anti-suit injunctions' effect.

The advice that follows. Before seeking an anti-suit injunction, assess the probability and consequence of a counter-injunction. A client who obtains a US injunction and then faces a foreign order requiring it to seek that injunction's dissolution, on pain of local sanctions, is worse off than if it had raced.

The alternatives

Stay or dismissal in favour of the foreign proceeding

Forum non conveniens — dismissal where an adequate alternative forum exists and the private and public interest factors strongly favour it. The standard is demanding, the plaintiff's choice of forum receives deference (less where the plaintiff is foreign), and the defendant bears the burden.

Colorado River abstention, from Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), permits a federal court to abstain in favour of parallel state proceedings in exceptional circumstances. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983) emphasized how narrow this is: the "virtually unflagging obligation" of federal courts to exercise their jurisdiction, and that abstention requires exceptional circumstances, with the balance heavily weighted against surrender.

Colorado River addresses federal-state parallelism, and courts have applied analogous but distinct reasoning to international parallel proceedings — generally with the same reluctance.

The discretionary stay. Landis v. North American Co., 299 U.S. 248 (1936) confirms the inherent power to stay proceedings, as an incident of the power to control the docket, requiring a balance of competing interests. This is the most flexible tool and is frequently the practical answer where a foreign proceeding is further advanced.

The first-filed rule

Among federal courts, the first-filed action is generally favoured, subject to exceptions for anticipatory declaratory filings and for compelling circumstances. Between a US and a foreign court there is no such rule, though the relative progress of the two actions is a factor in a discretionary stay.

Enforcement of the resulting judgment

If neither court stops, one will reach judgment first, and that judgment will be asserted in the other. Recognition of a foreign judgment in the United States is governed by state law, commonly a version of a uniform act, which provides for recognition of a final money judgment subject to mandatory and discretionary grounds for non-recognition — lack of impartial tribunals, lack of jurisdiction, fraud, public policy, and conflict with another final judgment.

The reciprocal question — recognition of a US judgment abroad — varies enormously, and in many civil law jurisdictions a US judgment is not enforceable at all absent a treaty. This asymmetry drives strategy, and it is why arbitration, with the New York Convention behind it, is preferred in cross-border commercial contracts.

Discovery as a front in the parallel-proceedings war

Two doctrines make discovery a strategic battleground when litigation spans borders.

Section 1782, at 28 U.S.C. § 1782, permits a US district court to order a person found or residing in the district to give testimony or produce documents for use in a proceeding in a foreign or international tribunal. It is broad, it is available to a party or to any interested person, and — critically — it does not require that the material be discoverable in the foreign proceeding.

The consequence: a party to foreign litigation may obtain US-style discovery from a US-resident adversary or third party, for use abroad, on terms the foreign court would never permit. This is a substantial asymmetric advantage, and it is a routine feature of transnational disputes.

And the reverse problem. Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522 (1987) held that the Hague Evidence Convention does not provide the exclusive means of obtaining evidence located abroad from a party subject to US jurisdiction. A US court may order such a party to produce, applying a comity analysis, even where the foreign state's law prohibits production.

Which produces the blocking statute conflict. Several states have enacted blocking statutes prohibiting the production of evidence for foreign proceedings. A party subject to both a US production order and a foreign prohibition faces genuine exposure, and the comity analysis courts apply — weighing the importance of the documents, the specificity of the request, the origin of the information, alternative means, and the competing interests — does not always spare it.

The practical instruction. In any cross-border dispute, map the discovery asymmetry early. A party with US-resident adversaries has access to section 1782; a party with documents and personnel in a blocking-statute jurisdiction has exposure. Both should be assessed before the forum strategy is set, because they frequently determine where a party wants the case to be.

Moving for an anti-suit injunction

The application is a preliminary injunction motion with an additional layer, and both the standard and the record differ from ordinary practice.

The showing. Courts apply the ordinary preliminary injunction factors — likelihood of success, irreparable harm, the balance of equities, and the public interest — overlaid with the threshold requirements and the comity analysis. Some courts treat the China Trade framework as substituting for the ordinary factors; others require both. Plead to both.

Timing. Move early. An application filed after the foreign action has progressed substantially faces the argument that the movant acquiesced, and a court is far more reluctant to unwind months of foreign proceedings than to restrain an action just filed.

The record to build:

  • The agreement, if there is a forum selection or arbitration clause. This is the strongest possible evidence and should lead.
  • The chronology, showing the foreign filing's timing relative to the domestic action and to any adverse ruling.
  • The foreign pleadings, translated, showing the overlap with the domestic claims — which supports the dispositive threshold.
  • Evidence of vexatiousness: a reactive declaratory filing; a forum with no connection to the dispute; claims duplicating those already before the domestic court.
  • Evidence of the threat, where the conservative approach applies: how the foreign action would frustrate the domestic court's jurisdiction, or evade a specific policy.
  • A declaration from foreign counsel on the foreign proceeding's nature, its likely timetable, and what relief is available there.
  • The scope of the proposed order, drafted narrowly.

Drafting the order. Ask for the least the client needs. An order restraining a party from "pursuing any proceeding anywhere concerning this dispute" invites the criticism that the court is arrogating jurisdiction over the world. An order restraining the enforcement of a specific foreign injunction pending a specific domestic determination is far more likely to be granted and to survive appeal.

Include:

  • A precise identification of the foreign proceeding restrained
  • The conduct enjoined — commencing, prosecuting, enforcing, or all three
  • A temporal limit tied to a domestic milestone
  • A carve-out permitting steps necessary to preserve rights or to comply with foreign court orders on procedure
  • Whether a bond is required

Anticipate the counter-application. Before filing, assess whether the foreign court will grant an anti-anti-suit injunction and what that would mean for the client's people and assets in that jurisdiction. Advise the client on this explicitly, because a client that obtains an injunction and then faces contradictory orders will ask why it was not warned.

A worked example: the Halvorsen distribution dispute

The parties. Halvorsen Instruments, a Minnesota manufacturer, and Bergamo Strumenti, its Italian distributor. The distribution agreement contains a non-exclusive jurisdiction clause in favour of Minnesota and a choice of Minnesota law.

The dispute. Halvorsen terminates for non-payment. Bergamo claims wrongful termination and, under Italian law, compensation for goodwill.

March 3. Halvorsen sues in the District of Minnesota for unpaid invoices of $4.1 million.

March 24. Bergamo sues in Milan, seeking a declaration that the termination was unlawful and damages of €9 million, including goodwill indemnity — a claim Minnesota law does not recognize.

The strategic picture

Halvorsen wants the Minnesota case to control. Its claim is straightforward, Minnesota law applies, and the Italian goodwill indemnity is a substantial exposure it would rather not face.

Bergamo wants the Milan case to control. The indemnity claim is available there, the Italian court may apply mandatory local protections notwithstanding the choice of law, and litigating in Italy is cheaper for it.

Halvorsen's options

Option 1: race. Push the Minnesota case to judgment. If Halvorsen wins first, it asserts the judgment in Milan.

The problem: Italian courts will not readily recognize a US judgment, and the goodwill indemnity may be treated as a matter of mandatory local law not displaced by a foreign judgment on the contract. The race may not be winnable in the sense that matters.

Option 2: anti-suit injunction.

The threshold. Same parties — yes. Dispositive? This is the difficulty. The Minnesota action decides the unpaid invoices; it may decide the lawfulness of termination; but it may not decide the goodwill indemnity, which is an Italian statutory claim. If the Minnesota case will not resolve the Italian one, the threshold fails.

The response: Halvorsen amends to seek a declaration that the termination was lawful and that Bergamo is entitled to no compensation of any kind, including under any foreign law, thereby making the Minnesota action dispositive.

The discretion. Minnesota sits in the Eighth Circuit, which follows the conservative approach after Goss International. Halvorsen must show a threat to the court's jurisdiction or to an important public policy. Duplication and expense will not suffice.

Its argument: the jurisdiction clause. The parties agreed to Minnesota, and the federal policy favouring enforcement of forum selection clauses supplies the public policy. But the clause is non-exclusive, which substantially weakens this — a non-exclusive clause permits suit elsewhere, and Bergamo has not breached it.

This is the point on which the case turns, and it was decided years earlier by whoever agreed to a non-exclusive clause.

Option 3: seek a stay in Milan. Under Italian procedure and any applicable European instrument, argue that the Minnesota court was first seised. Whether a lis pendens rule applies to a non-member-state court is a question of the applicable regime, and the answer differs from the intra-European position.

Option 4: negotiate. With substantial exposure in both forums and an expensive procedural war ahead, both parties have reason to settle. This is what usually happens, and the parallel proceedings' function is to create the pressure that produces it.

What Halvorsen does

It amends the Minnesota complaint to seek the comprehensive declaration; moves for an anti-suit injunction, recognizing that the non-exclusive clause makes it difficult; simultaneously seeks a stay in Milan; and opens settlement discussions.

The injunction is denied, on comity grounds and because the clause is non-exclusive. The Milan stay is refused. The parties settle at $2.6 million to Halvorsen, which reflects the litigation risk on both sides rather than either party's view of the merits.

The drafting lesson, which is the article's practical point: an exclusive jurisdiction clause, or an arbitration clause, would have changed everything. With either, Halvorsen's injunction application would have been strong in any circuit, and Bergamo's Milan filing would have been a breach of contract rather than an exercise of a permitted option.

A worked example: the standards dispute

The parties. Corvinus Semiconductor holds patents declared essential to a wireless standard, subject to a commitment to license on fair, reasonable, and non-discriminatory terms. Nordkap Devices makes handsets and has been negotiating a licence for two years.

The sequence:

  • Corvinus sues Nordkap in Germany, seeking an injunction against handset sales, on two of the declared-essential patents
  • Nordkap sues Corvinus in the Western District of Washington, alleging breach of the FRAND commitment and seeking a determination of a FRAND rate for the whole portfolio
  • Nordkap moves in Washington for an anti-suit injunction restraining Corvinus from pursuing the German injunction

The analysis

Threshold — dispositive? Nordkap argues that the US action will determine Corvinus's contractual obligations under its FRAND commitment, including whether Corvinus is entitled to seek injunctive relief at all, and that this is dispositive of the German injunction proceedings.

This is the argument accepted in Microsoft v. Motorola, and it is the doctrinal move that makes anti-suit injunctions available in standards cases: the foreign patent case is characterized as an incident of the contractual dispute the US court will decide.

Discretion. The Ninth Circuit follows the liberal approach. Nordkap argues that the German injunction would frustrate the US court's determination of the FRAND rate — because an injunction would force Nordkap to accept whatever Corvinus demanded, mooting the rate determination — and that the German action is a pressure tactic inconsistent with the FRAND commitment.

The injunction issues, restraining Corvinus from enforcing any German injunction pending the US determination.

The escalation

Corvinus applies in Germany for an anti-anti-suit injunction, restraining Nordkap from enforcing the US order. The German court grants it.

Nordkap is now under contradictory orders: the US court forbids Corvinus from enforcing the German injunction; the German court forbids Nordkap from enforcing the US injunction.

What counsel actually advise. The analysis is not doctrinal; it is about exposure. Where are the assets? Where are the personnel who could be sanctioned? Which court will act first, and how severely? Nordkap's German subsidiary and its European sales are exposed; Corvinus's US licensing revenue is exposed.

The resolution. As in most of these cases, the parties settle — a portfolio licence at a rate somewhere between their positions, with global releases. The procedural war cost each side several million dollars and determined the outcome more than the merits did.

The lesson for a party in a standards dispute. The anti-suit injunction is a real weapon and the counter-weapon is real too. Assess the counter-injunction risk before applying, map the exposure in each jurisdiction, and recognize that the escalation frequently produces a settlement at a price neither side would have accepted before it started — which may or may not be the client's objective.

Comparative note: how other systems handle it

US practice is unusual, and counsel advising on a cross-border dispute should know how the other forum thinks about the same question.

European Union. Within the Union, a lis pendens rule requires the court second seised to stay proceedings until the first court decides its jurisdiction, and to decline if the first accepts. The rule is mechanical and it makes the race to file decisive. Anti-suit injunctions restraining proceedings in another member state have been held incompatible with the mutual trust the system requires — a member state court may not police another's jurisdiction.

As against non-member states, the position is different, and courts have discretion to stay in favour of a third-state proceeding on defined conditions.

England and Wales. A long tradition of granting anti-suit injunctions, on the basis that the court restrains the party and not the foreign court, where proceedings abroad are vexatious or oppressive or brought in breach of an agreement to arbitrate or to litigate elsewhere. The breach-of-agreement ground is applied robustly, and injunctions to restrain proceedings brought contrary to an arbitration clause are close to routine — subject to the constraints that applied while EU rules governed proceedings within the Union.

Civil law jurisdictions generally. Anti-suit injunctions are unfamiliar and frequently regarded as an interference with judicial sovereignty. Some have legislated to neutralize them, and courts in several have granted anti-anti-suit relief in response to foreign injunctions — which is the escalation described above.

Arbitration seats. Where the parties have agreed to arbitrate, the courts of the seat commonly have power to restrain foreign court proceedings brought in breach, and the tribunal itself may order a party to discontinue foreign litigation — an order enforceable as an interim measure and, breach of which, a matter the tribunal may take into account.

The practical implications:

  • The race to file matters more in Europe than in the United States, because of lis pendens. A party contemplating European proceedings should file early, and one anticipating them should consider filing first.
  • An anti-suit injunction from a US court will not be respected in most civil law jurisdictions, and may provoke a counter-order.
  • An arbitration clause is the most effective answer to all of this, because it removes the dispute from national courts, gives the seat's courts a clear basis to restrain breach, and produces an award enforceable under the New York Convention where a judgment would not be.

Drafting to prevent the problem

Almost every parallel-proceedings war traces to a dispute resolution clause that permitted it. The drafting responses are simple and are routinely omitted.

An exclusive jurisdiction clause, or an arbitration clause. A non-exclusive clause permits the counterparty to sue anywhere, which is what produces parallel proceedings — and, as the worked example above shows, it also defeats the anti-suit injunction that would otherwise stop them. If the client wants one forum, say exclusive.

Arbitration, where enforcement abroad matters. An award is enforceable under the New York Convention in most of the world; a US judgment frequently is not. For any contract with a counterparty whose assets are outside the United States, this consideration usually dominates.

A covenant not to sue elsewhere, expressly:

Each party irrevocably agrees not to commence or prosecute any proceeding concerning any Dispute in any forum other than [the Chosen Forum / arbitration under Section [__]], and agrees that any such proceeding may be restrained by injunction and that damages would be an inadequate remedy.

An express acknowledgment of injunctive relief, which supports both the irreparable harm showing and the argument that the parties contemplated the remedy.

An anti-anti-suit provision, in a contract where the risk is real:

Neither party shall seek, in any forum, any order restraining the other from commencing, prosecuting, or enforcing any proceeding permitted by this Agreement, or from seeking or enforcing any relief in the Chosen Forum.

A carve-out for interim relief, permitting either party to seek conservatory measures from any court without breaching the exclusive forum commitment — because a party that needs an urgent attachment abroad should not have to breach its own clause to get one.

Consistent clauses across the document set. A master agreement with arbitration, a supply agreement with a different forum, and a guarantee with a third produce exactly the parallel proceedings the clauses were meant to prevent. Reconcile them.

Service of process agents in each relevant jurisdiction, so that a proceeding cannot be delayed for a year by service through diplomatic channels.

And a note on what cannot be drafted around. Mandatory local protections — dealer and distributor statutes, employment protections, consumer rules, and competition law — frequently survive a choice of law and a choice of forum, and a counterparty in such a jurisdiction may be able to litigate there whatever the contract says. Where the counterparty is in such a jurisdiction, price that risk rather than assuming the clause solves it.

Managing a case that is already parallel

Where the proceedings exist and neither will stop, the work is coordination.

Appoint a coordinating lead. One lawyer, in one jurisdiction, responsible for the global picture: the timetables, the consistency of the positions taken, the evidence, and the settlement strategy. Two sets of counsel running independently produce inconsistent positions, which the other side will exploit.

Maintain a single position paper. What the client says about the facts, in every forum. A statement made in a German pleading will be translated and put to the client's witness in a US deposition, and a client that has taken inconsistent positions has a credibility problem it cannot fix.

Map the evidence obligations. What must be produced where, what is protected where, and where the conflicts are — particularly blocking statutes and data protection restrictions that prohibit transferring material to a US proceeding.

Coordinate the witnesses. The same people will testify in both, and their evidence must be consistent. Prepare them once, for both, and ensure counsel in each forum knows what was said in the other.

Track the res judicata and issue estoppel positions. Which findings in one proceeding will bind in the other, and when. This determines the sequencing strategy: a party that expects to win on an issue in Forum A may want that issue decided there first.

Watch for the judgment race. Where recognition is realistic, the timing of judgment matters enormously, and both sides will accelerate or delay accordingly. Understand whether a judgment from each forum would actually be recognized in the other, because a race that neither party can win in the sense that matters is a waste of money.

Model the total cost. Two full proceedings plus the procedural war frequently exceed the amount in dispute. Present that number to the client early, because it is usually the fact that produces settlement.

And keep the settlement channel open. Parallel proceedings generate pressure on both sides, and that pressure is the point. Most of these disputes resolve — not because either party won, but because both concluded that the cost and uncertainty exceeded the difference between their positions.

Quick reference

The problem. The United States has no international lis pendens rule. Two courts may hear the same dispute simultaneously, and the party that reaches judgment first frequently wins everywhere.

An anti-suit injunction operates on the party, not the foreign court, and is enforced by contempt.

Every circuit requires two thresholds: the same parties, and that resolution of the domestic case would be dispositive of the foreign action. The dispositive requirement defeats many applications, and it can sometimes be satisfied by amending the domestic pleading to cover the foreign claims.

Then the split. The conservative approach — Gau Shan, Quaak, Goss — requires a threat to the court's jurisdiction or to an important public policy; duplication and expense are not enough. The liberal approach — Gallo — treats comity as one factor and weighs the equities including duplication and vexatiousness.

The split matters least where there is an agreement. An injunction to enforce an arbitration clause or an exclusive forum selection clause succeeds in either camp, because the party is being held to its bargain rather than the foreign court second-guessed.

Anti-anti-suit injunctions have proliferated, particularly in standards disputes. Assess the counter-injunction risk before applying, and map where the client's people and assets are exposed.

The alternatives are forum non conveniens, a discretionary stay under Landis, and — narrowly — abstention, which Moses H. Cone confirms requires exceptional circumstances against a "virtually unflagging obligation" to exercise jurisdiction.

Discovery is a front. Section 1782 gives a party to foreign litigation US-style discovery for use abroad, without requiring that the material be discoverable there. Aérospatiale permits a US court to order production of material located abroad notwithstanding a blocking statute, on a comity analysis. Map both asymmetries before setting the forum strategy.

And the drafting point that prevents all of it: an exclusive jurisdiction clause or an arbitration clause, a covenant not to sue elsewhere, an acknowledgment that injunctive relief is appropriate, and consistent clauses across the whole document set.

Defending against an anti-suit application

The respondent's position has its own architecture, and it is frequently stronger than the movant expects.

Attack the thresholds first.

Same parties. Where the foreign action includes parties not before the domestic court — a local subsidiary, a guarantor, a distributor — the identity requirement is weakened, and the domestic case cannot dispose of claims by or against non-parties.

Dispositive. This is the strongest defence in most cases. Identify every claim, issue, and remedy available in the foreign proceeding that the domestic action will not decide: statutory claims arising under foreign law; remedies unavailable domestically; parties not before the domestic court; and property or conduct outside the domestic court's reach. A single such item defeats the threshold.

Then comity.

  • Emphasize the foreign court's legitimate interest: the conduct occurred there, the parties are established there, the applicable law is theirs, or the claim arises under their statute.
  • Point to mandatory local protections the foreign forum exists to apply and the domestic court would not.
  • Argue that an injunction interferes with a co-equal sovereign, and — where the circuit follows the conservative approach — that the movant has shown no threat to jurisdiction or to any important policy.
  • Cite the escalation risk: an injunction invites a counter-injunction, and courts are increasingly conscious of it.

Attack the equities.

  • Delay. Did the movant wait while the foreign action progressed? Acquiescence is a strong answer.
  • Unclean hands. Did the movant itself file reactively, or forum shop, or take inconsistent positions?
  • Prejudice. What does the respondent lose if enjoined — a limitations period running, a remedy unavailable elsewhere, a security or attachment already obtained?
  • The movant's own conduct in the foreign forum: did it appear, contest jurisdiction, or seek relief there before objecting?

Attack the scope. Even where some relief is appropriate, argue for the narrowest order: restraining a specific step rather than the whole proceeding, for a defined period, with carve-outs for steps necessary to preserve rights and to comply with foreign procedural requirements.

And consider the counter-application. Where the foreign forum permits anti-anti-suit relief, assess it — but assess also whether escalation serves the client, or merely raises the cost of a dispute that will settle.

Related documents