THE ARBITRAL TRIBUNAL CANNOT ISSUE AN INJUNCTION AGAINST A

THIRD PARTY

1. The agreement between the parties has provided for arbitration under the UNCITRAL
Arbitration Rules. It is submitted that Article 26 of the Rules only allows interim
measures to be applicable to the parties to an agreement 1. Since anti-suit injunctions
are also a form of interim measure, they also come within the ambit of the rule 2. In
addition to this, it is contended that the third party in the case is beyond the subject
matter jurisdiction of the tribunal.

[a] THE ANTI-SUIT INJUNCTION AGAINST THE NON-PARTY IS BEYOND THE TRIBUNAL’S
SUBJECT-MATTER JURISDICTION

2. It is submitted that arbitration proceedings are part of a consensual relationship

between two parties. Thus, the effects of a dispute cannot extend to a foreign third
party and bars any forced intervention or other guaranteed procedures. Additionally,
the third party in the case can’t be later asked to submit to the arbitration or to which
it has not consented3. These principles if violated, also infringe the Article 2 of the
New York Convention, 1958, which states that any dispute is arbitrable only if the
subject matter is capable of settlement through the arbitration.4
3. It is submitted that under the Arbitration and Conciliation Act, 1996 5, an arbitral
tribunal has no rights to pass interim orders against a party6. In addition to this, the SC
of India has also laid down that the party against whom the injunction is to be applied
is to be amenable to the personal jurisdiction of that court7. It has also in the past
refused to issue anti-suit injunctions for the mere reason that one of the parties against
whom it was to be imposed was a third party 8. Considering the judicial position, it is
further submitted that the third party in the present case is not amenable to the
jurisdiction of the arbitral tribunal which, under common law, requires presence or

1
United Nations Commission on International Trade Law Arbitration Rules (with new article 1, paragraph 4, as
adopted in 2013), 1976
2

3
Gary B. Born, International Commercial Arbitration (2nd , Kluwer Law International, 2014)
4
Article 2, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.
5
The Arbitration and Conciliation Act, 1996, s 17
6
M. D. Army Welfare Housing vs Sumangal Services Private Ltd. [2004] 9 SCC 619
7
Modi Entertainment Network & Anr. vs W. S. G. Cricket Pte. Ltd. 2003 AIR SCW 733)
8
Moser Baer India Ltd. vs. Koninklijke Phillips Electronics [2008] (1) CTLJ 421 Del
 submission to the statutory rules governing the tribunal, namely the Indian arbitration
law.9
4. An arbitral tribunal is not an organ of a sovereign and therefore, cannot bind any party
to comply with its decision10. Thus, in the present case, it cannot impose any coercive
measures on the non-party, let alone an anti-suit injunction.

(b) THE TRIBUNAL HAS NO VALID GROUND TO SURPASS THE RULE AGAINST ISSUANCE OF
ANTI-SUIT INJUNCTION TO THE THIRD PARTY

5. It is further contended that in international arbitration, third parties are ideally not to
be issued anti-suit injunctions unless they fall under two broad exceptions 11. These
are, first, having some contractual relation with at least one of the parties, or second,
being accused of fraud12. In the instant case, neither of these exceptions stand since
the parties have approached the court in the light of the death of their kin. Further,
since there is little to no probability that the third party concerned is bound to the
arbitration clause, it shouldn’t be forced to claim remedies under the arbitration
agreement or be limited in their claim by the laws governing the agreement13.
6. Additionally, there exists a general principle that courts or tribunals can proceed
against a third party provided its conduct is unconscionable or vexatious. However,
anti-suit injunctions against the third party can’t be granted where its claim made is in
good faith and it does not seek to irresponsibly invalidate the arbitration
proceedings14. In the present instance, the third party receives the ‘good faith’ defence
as its mere purpose is to seek compensation for the death of the passengers.
7. It is also to be noted that courts often proceed with injunctions against a third party
for the fear of inconsistent decisions which then affects the interests of the parties in
an agreement15. However, in this scenario, the claims made are outside the scope of
the agreement and thus the rights of the two main parties remain unaffected.

9
Geoffrey Fisher, ‘Anti-suit Injunctions to Restrain Foreign Proceedings in Breach of an Arbitration Arbitration
Agreement’ (2010) 22(1) BLR < file:///C:/Users/Hp/Downloads/5548-anti-suit-injunctions-to-restrain-foreign-
proceedings-in-breach-of-an-arbitration-agreement%20(1).pdf> accessed 20 August 2020
10
Yesilirmak Ali, ‘Provisional Measures in International Commercial Arbitration’ (DPhil theses, University of
London, 2003)
11
Laurent Levy, ‘Anti-suit Injunctions Issued by Arbitrators’ in Emmanuel Gaillard (ed.), Anti-suit
Injunctions in International Arbitration 116 (Juris Publishing 2005).
12
Emmanuel Gaillard, ‘Anti-suit Injunctions Issued by Arbitrators’ in Albert Jan Den Ven Berg(eds.)
International Arbitration 2006: Back to Basics (ICCA 2006)
13
Roechester Resources Ltd. vs Lebedev [2014] EWHC 2926 (Comm)
14
Evison Holdings Limited v International Company Finvision Holdings & Anor [2019] EWHC 3057 (Comm)
15
Ibid 9
 THE ANTI-SUIT INJUNCTION HURTS THE POSPECTS OF INTERNATIONAL
COMITY AND IS AN UNDUE INTERFERENCE IN AUSTRALIAN LAWS.

8. Comity can be comprehensively defined as ‘the recognition by a nation of another’s

judicial, executive and legislative acts, having due regard to international duty and the
rights of the citizen’16. Recognised by both civil and common law jurisdictions,
‘judicial comity’ demands mutual respect for the procedural and substantial laws of a
nation17.

9. In the present case, the Australian court has exclusive jurisdiction to decide questions on the
fundamental rights of its citizens. It is submitted that two prerequisites determine the
application of comity particularly in this circumstance. First, comity demands self restraint
and refrain from passing an order which more properly appertains to jurisdiction of a foreign
state18. Second, comity requires that the scope of the injunction shouldn’t be broader than
what is necessary to avoid the harm19.

10. In the present case, the injunction against the documents and the witness would not only
violate the need for self restraint and interfere with a foreign jurisdiction, it will effectively
halt the proceedings of the Australian court in the absence of incriminating evidence. An anti-
enforcement proceedings till the final proceeding of the tribunal seems more plausible.

11. Additionally, under the principle of equitable jurisdiction, courts have looked at jurisdiction
under contractual agreements to understand the relevance of comity 20. The seat of arbitration
in the present case is India.

12. In this regard, it is submitted that the Supreme Court of India has explicitly upheld the
principle of comity while considering anti-suit injunctions 21. The SC has also noted that
comity has to be given adequate consideration to avoid an ugly rush between the courts or
tribunals of two friendly states to issue injunctions 22. The latter o..pinion aptly forewarns an

16
Hilton v. Guyot [1895] 159 U.S. 113, 164
17
Jeremy Lam, ‘A call for more Comity in granting Extraterritorial Anti-suit Injunctions (ElgarOnline, 28
February 2020) <http://cilj.co.uk/2020/02/28/a-call-for-more-comity-in-granting-extraterritorial-anti-suit-
injunctions/> accessed 25 August 2020
18
Cameron Sim, ‘Choice of Law and Anti-Suit Injunctions: Relocating Comity’ (2013) 62(3) ICLQ
<http://www.jstor.com/stable/43301583> accessed 21 August 2020
19
S. I. Strong, ‘Anti-Suit Injunctions in Judicial and Arbitral Procedures in the United States’ [2018] 66 AJCL
153
20
Michael Douglas, ‘Anti-suit Injunctions in Australia’ (2017) Sydney Law School Research Paper
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019622> accessed 24 August 2020
21
Ibid 5
22
Enercon(India) Ltd. vs Enercon Gmbh [2014] 3 SCC (Civ) 59
 undesirable race between the India-based tribunal and the Australian Court to issue anti-suit
and subsequent anti-anti-suit injunctions.

13. The incidents following up to the accident of the ConJ Airlines reflects neglect and
carelessness on the part of Shonty. This is especially relevant in that it is common knowledge
in the field of international aviation that such neglect could have disastrous consequences 23
and thus, warranted extra care on the part of manufacturers. It is henceforth, submitted that
the accident attracts strict liability and thus, the tribunal should refrain from the issuance of
injunction in such a serious matter.

(1) THE TRIBUNAL SHOULDN’T ISSUE AN INJUNCTION AS THIS SERVES THE INTERESTS OF
SHONTY IN ESCAPING THE LIABILITY IN A STRICT-LIABILITY ACCIDENT.

14. It is submitted that broadly two to three types of problems in aviation manufacturing attract
strict liability24.One is a design defect in which the whole product line or every product of a
given line is dangerously defective usually because of avoiding manufacturing norms 25. In the
instant case, the entire 420 MFA model of aircrafts have engines placed at inappropriate
places. It also has failed to incorporate adequate ‘performance standards’ which are generally
used to accommodate technological change and increased automation 26, such as DARIC, in
the manufacturing design.

15. Another is ‘lack of warning’ which is a situation when manufacturers don’t provide
appropriate warnings about possible defects and user manuals27. In the accidents, it was
firmly clear that the pilots were unaware of the new safety procedures and ‘complained that
the nose of the plane was not in his control’. Additionally, they also weren’t trained
adequately on the DARIC stabilizers.

16. It is further contended that the Montreal Convention, 1999 28 imposes a strict liability with
few exceptions, whenever a passenger’s death is caused by ‘an unexpected or unusual event’.
23
Mark Young, Neville Stanton, Don Harris, ‘Driving Automation: Learning from Aviation about design
philopshies’ Vol. X, No. Y IJTM
<https://bura.brunel.ac.uk/bitstream/2438/1633/1/Driving_automation_Young_et_al.pdf> accessed 17 August
2020
24
Tomasso Sogoba, ‘B-737 Max and the Crash of the Regulatory System’ (SpaceSafetyMagazine)
<http://www.spacesafetymagazine.com/wp-content/uploads/2019/05/B-737-MAX.pdf> accessed 19 August
2020
25
Barker v. Lull Engineering Co. [1978] 143 Ca. Reptr. 225
26
Ibid 24
27
Anna Konnert, ‘Aviation Accidents involving Boeing 737 MAX : Legal Consequences’ (2019) 13(3)
QFLAQU <https://iusnovum.lazarski.pl/fileadmin/user_upload/oficyna/Ius_Novum/ius-novum-2019-
3/Ius_Novum_3-19_internet.pdf#page=120> accessed 23 August 2020.
28
Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 1999
It has been held in the past that airplane crashes fall within this category 29. Additionally, a
plane crash won’t be accompanied with the few exceptions as these are only the result of
definitional loopholes in the convention30. Since an international anti-suit injunction in itself
is antagonistic to nationalistic isolationism.31

29
Wallace v Korean Air [2001] 69 U.S.L.W 3281
30
STA Law Firm, ‘The Montreal Convention: Establishing Unity and Predictability for International Carriage
Regulations’ ( Mondaq, 8 February 2019) <https://www.mondaq.com/aviation/779026/the-montreal-
convention-establishing-unity-and-predictability-for-international-carriage-regulations> accessed 19 August
2020
31
ibid