G. Born - ICA, 3 Ed, Vol I, Chapter 8

International Commercial Arbitration
International Commercial Arbitration

Third Edition
By
Gary B. Born
Volume I: International Arbitration Agreements

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Chapter 8
Effects and Enforcement of International Arbitration
Agreements
International arbitration agreements have potentially significant consequences for the parties’
legal rights. This Chapter examines these legal effects, including both the negative effect of
denying parties the right to pursue litigation in national courts and the positive effect of obli-
gating them to arbitrate their disputes in good faith. The Chapter also discusses the different
mechanisms for enforcing these obligations under leading legal systems. Finally, the Chapter
addresses the related subjects of antisuit and anti-arbitration injunctions.
§8.01 INTRODUCTION
A valid international arbitration agreement produces important legal effects for its parties, as
well as for national courts and arbitral tribunals.1 These effects of arbitration agreements are
both positive and negative: the positive effects include the obligation to participate and coop-
erate in good faith in the arbitration of disputes pursuant to the parties’ arbitration agreement,
while the negative effects include the obligation not to obstruct the resolution of disputes that
are subject to arbitration by the arbitral tribunal or to seek the resolution of such disputes in
national courts or other legal forums.2 These obligations were well described in an early Swiss
judicial decision:
“[T]he principal effect of an arbitration clause is not the exclusion of jurisdiction of
state courts, but the transfer of the right of adjudication to an arbitral tribunal: This
positive effect legally arises in the state where the arbitral tribunal is sitting according
to the agreement. The negative effect, i.e., the exclusion of jurisdiction of state courts is
nothing but a consequence of the positive effect.”3
The positive and negative effects of agreements to arbitrate are affected significantly by the
means of enforcement of those agreements under applicable international conventions and
national arbitration legislation. As discussed above, during some historical periods, arbitra-
tion agreements were rendered ineffective because they were not susceptible of enforcement
through orders for specific performance and because monetary damages were difficult to
quantify and provided inadequate disincentives for breaches.4
1 The effects of arbitration agreements on the rights and duties of international arbitrators are discussed
below. See §13.02; §13.04[B].
2 The negative effects of an arbitration agreement include the waiver of rights of access to public courts.
As discussed above, these rights are accorded constitutional or statutory protections in many jurisdictions. See
§5.01[D].
3 Judgment of 2 October 1931, DFT 57 I 295 (Swiss Fed. Trib.), quoted in van Houtte, Parallel Proceedings
Before State Courts and Arbitration Tribunals: Is There A Transnational Lis Pendens – Exception in Arbitration or
Jurisdiction Conventions?, in P. Karrer (ed.), Arbitral Tribunals or State Courts: Who Must Defer to Whom? 35, 42
(2001).
4 See §§1.01[B][3] & [5]; §5.01[A]; §8.03[C][7]; Schifffahrtsgesellschaft Detlev von Appen GmbH v. Voest
Alpine Intertrading GmbH [1997] 2 Lloyd’s Rep. 279 (English Ct. App.) (court recognized arbitration agree-
ment on basis that “the application of the Timecharterers for an injunction [was] made to protect [their]
contractual right … that the dispute be referred to arbitration, a contractual right which equity requires the
Insurance Company to recognize …”).
§8.02[A] Effects and Enforcement of International Arbitration Agreements
Contemporary international arbitration regimes have fundamentally altered this, making

it possible, in varying degrees, to obtain orders of specific performance from national courts
of both the negative and positive obligations imposed by arbitration agreements.5 These rem-
edies vary in some respects among national legal systems, but, in developed jurisdictions,
provide broadly similar and effective means of enforcing international arbitration agreements.
Those means of enforcement include stays of litigation, orders to compel arbitration, antisuit
injunctions, actions for monetary damages and non-recognition of judgments obtained in
breach of a valid arbitration agreement.
§8.02 POSITIVE LEGAL EFFECTS OF INTERNATIONAL

ARBITRATION AGREEMENTS: OBLIGATION TO ARBITRATE IN
GOOD FAITH
The most fundamental objective and effect of an international arbitration agreement is to ob-
ligate the parties to participate cooperatively, diligently and in good faith in the resolution of
their disputes by arbitration pursuant to that agreement. As discussed above, this obligation
is a sui generis one – requiring parties whose underlying commercial or other relations have
deteriorated to the point of litigation to cooperate together, in good faith, in an adjudicatory
procedure that will finally resolve their disputes, in a binding manner, either for or against one
of the parties.6 The basis and content of this positive obligation, which is in many respects a
unique and striking one, are detailed below.
[A] Sources of Positive Obligation to Arbitrate

The positive obligations imposed by an arbitration agreement are not expressly recognized in
either international conventions or most national legislation. Those instruments instead gen-
erally focus on the negative effects of the arbitration agreement (i.e., forbidding litigation of
arbitrable disputes in national courts) or the remedies for breaches of arbitration agreements
(i.e., referring the parties to arbitration).7 Nonetheless, the positive obligation to arbitrate dis-
putes is a necessary implication from the language of the relevant conventions and legislation,
and forms one of the foundations of the international arbitral process.
More fundamentally, the positive obligation to arbitrate has its source in the parties’
agreement to arbitrate, which courts are required to recognize and enforce under both the
New York Convention and most contemporary national arbitration legislation. In agreeing to
arbitrate, the parties do not merely negatively waive their access to judicial remedies, but also
affirmatively commit themselves to participating in the resolution of their disputes through
the arbitral process. This positive obligation to participate cooperatively, diligently and in
good faith in a mutually-established, adjudicative dispute resolution process is central to the
arbitration agreement and to the arbitral process itself.
[1] Positive Obligation to Arbitrate Under International Arbitration Conventions

The positive obligations imposed by an arbitration agreement are only implicitly recognized
in leading international conventions. Both Article 1 of the Geneva Protocol and Article II(1)
of the New York Convention require Contracting States to “recognize” written agreements by
5 See §1.01[C]; §5.01[B]; §8.02[C]; §8.03[C].

6 See §1.01[B]; §1.02; §2.02.
7 See §§1.04[A]-[B]; §2.01[A][1]; §5.01[B]; §8.03.
1350
Gary B. Born §8.02[A]
which parties undertake “to submit to arbitration” specified disputes.8 In the words of Article
II(1) of the Convention, Contracting States “shall recognize an agreement in writing under
which the parties undertake to submit to arbitration all or any differences .…”9
The premise of Article 1 of the Geneva Protocol and Article II(1) of the New York Con-
vention is that the parties’ obligation to arbitrate includes, most importantly, the affirmative
duty to accept the submission of their disputes to arbitration (“undertake to submit”) and to
participate cooperatively and in good faith in arbitral proceedings to resolve such disputes.
By agreeing to arbitrate, the parties do not merely negatively waive their legal rights or access
to judicial remedies,10 but instead agree to participate affirmatively in the resolution of their
disputes through the arbitral process, which has sui generis characteristics.11 This positive obli-
gation to participate in a mutually-established, adjudicative dispute resolution process is at the
foundation of the arbitration agreement.
The positive obligation to arbitrate is dealt with under the Geneva Protocol, New York
Convention and other international arbitration conventions by giving effect to the parties’
agreement – that is, by requiring “recognition” of that agreement – rather than by stating a
generally-applicable and abstract “obligation to arbitrate.” This approach to the positive duty
to arbitrate is consistent with the basic consensual and contractual character of the interna-
tional arbitral process.12
This approach is confirmed by Article 4(1) of the Geneva Protocol and Article II(3) of the
New York Convention. The former provides that, where a valid arbitration agreement exists,
the courts of Contracting States shall “refer the parties on the application of either of them to the
decision of the arbitrators.”13 Similarly, Article II(3) of the New York Convention provides:
“The court of a Contracting State, when seized of an action in a matter in respect of
which the parties have made an agreement within the meaning of this article, shall …
refer the parties to arbitration.”14
Again, Article 4(1) of the Geneva Protocol and Article II(3) of the New York Convention
provide mechanisms for giving effect to the undertakings contained in arbitration agree-
ments, rather than imposing any free-standing or independent obligation to arbitrate. In so
doing, these provisions implement both the positive effects (i.e., the parties shall be directed
to proceed with (“referred to”) arbitration), as well as the negative effects (i.e., the parties shall
not be permitted to proceed with litigation in national courts), of the arbitration agreement.
8 Geneva Protocol, Art. 1 (requiring Contracting States to recognize “the validity of an agreement … by
which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection
with such contract …”) (emphasis added); New York Convention, Art. II(1).
9 New York Convention, Art. II(1) (emphasis added).
10 As discussed above, an agreement to arbitrate does entail the relinquishment of access to otherwise
available judicial forums. See §5.01[D]; §§8.02 et seq. At the same time, unlike a release of claims or a waiver of
(for example) jury trial rights, an agreement to arbitrate also entails an affirmative obligation to proceed with
dispute resolution in a different, defined manner. See §§8.01 et seq.
11 See §1.05; §§2.02 et seq. for a discussion of the definition of “arbitration” and §§15.01[A]-[B]; §15.07, for
a description of the arbitral process.
12 See §1.02[A]; §1.02[B][3]; §1.04; §2.02.
13 Geneva Protocol, Art. 4(1) (emphasis added). See §1.01[C][1]; §5.01[B][1].
14 New York Convention, Art. II(3) (emphasis added). Article II(3)’s phrase “refer the parties to arbitra-
tion” was based on the language of Article 4(1) of the Geneva Protocol, and was included in the New York
Convention without detailed discussion. See A. van den Berg, The New York Arbitration Convention of 1958
129 (1981) (phrase “refer the parties to arbitration” was “continued in the New York Convention without any
discussion”); §1.01[C][1]; §2.01[A]; §5.01[B][2].
1351
Other leading international arbitration conventions are to the same effect as the New
York Convention. Article 1 of the Inter-American Convention provides that an agreement
by parties to “submit to arbitral decision” their differences shall be treated as “valid.”15 That
language rests on the premise that the parties’ arbitration agreement includes a positive ob-
ligation to “submit” their disputes to arbitration (instead of pursuing other means of dispute
resolution), and not merely a negative waiver or relinquishment of access to judicial remedies.
The European Convention also impliedly recognizes the positive obligation to participate in
arbitral proceedings, setting forth reasonably detailed provisions regarding the constitution of
tribunals and consideration of jurisdictional objections.16
Of course, an arbitration agreement does not require an aggrieved party to commence an
arbitration or to assert claims in arbitration, nor does it forbid a party from seeking or accept-
ing negotiated solutions to a dispute. Rather, an arbitration agreement requires a party, if an
arbitration is initiated by one of the parties to the arbitration agreement, to participate in the
arbitral process cooperatively, diligently and in good faith (i.e., the positive effects of arbitra-
tion agreements), and to forego litigating such disputes (i.e., the negative effects of arbitration
agreements).
[2] Positive Obligation to Arbitrate Under National Arbitration Legislation

The parties’ positive obligation to participate in arbitrating their differences is also impliedly
recognized in national legal systems, which generally parallel and implement the approaches
taken to this issue by the New York Convention. Thus, as detailed above, Article 7(1) of the
UNCITRAL Model Law defines an arbitration agreement as “an agreement by the parties
to submit to arbitration all or certain disputes ….”17 Similarly, Article 8(1) of the Model Law
provides:
“A court before which an action is brought in a matter which is the subject of an arbi-
tration agreement shall, if a party so requests … refer the parties to arbitration.”18
As with the New York Convention, these provisions do not create free-standing duties to arbi-
trate, but instead give effect to the parties’ contractual obligations to submit to the resolution
of their disputes by arbitration (rather than national court litigation) and to participate affir-
matively and cooperatively in the arbitration to which the parties are referred. Other national
arbitration legislation similarly deals with the positive obligation to arbitrate.19
15 Inter-American Convention, Art. 1.

16 European Convention, Arts. IV, V. See §1.04[A][2]; §2.01[A][1][b]; §5.01[B][3].
17 UNCITRAL Model Law, Art. 7(1) (emphasis added). See §2.02[B].
18 UNCITRAL Model Law, Art. 8(1) (emphasis added). See Bantekas, Arbitration Agreement and Sub-
stantive Claim Before Court, in I. Bantekas et al. (eds.), UNCITRAL Model Law on International Commercial
Arbitration: A Commentary 145-47 (2020); Beraudo, Case Law on Articles 5, 8, and 16 of the UNCITRAL Model
Arbitration Law, 23 J. Int’l Arb. 101 (2006); P. Binder, International Commercial Arbitration and Mediation in
UNCITRAL Model Law Jurisdictions 146-48 (4th ed. 2019); Cobb, Domestic Courts’ Obligation to Refer Parties
to Arbitration, 17 Arb. Int’l 313 (2001); H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL Model Law on
International Commercial Arbitration: Legislative History and Commentary 302 (1989); Sanders, UNCITRAL’s
Model Law on International and Commercial Arbitration: Present Situation and Future, 21 Arb. Int’l 443, 446
(2005). See §2.01[A][2]; §5.01[C][1].
19 U.S. FAA, 9 U.S.C. §4; English Arbitration Act, 1996, §9; Swiss Law on Private International Law, Art. 7;
Singapore International Arbitration Act, §6; Hong Kong Arbitration Ordinance, §20(1); Chinese Arbitration
Law, Art. 5; Japanese Arbitration Law, Art. 14; Indian Arbitration and Conciliation Act, §8. Spanish Arbitration
Act, Art. 11(1); Costa Rican Arbitration Law, Art. 8(1).
1352
Gary B. Born §8.02[B]
[B] Content of Positive Obligation to Arbitrate

The content of the positive obligation to arbitrate is dealt with under the Convention and
national arbitration legislation by giving effect to the parties’ agreement – that is, by requiring
“recognition” of that agreement – rather than by stating a generally-applicable and abstract
“obligation to arbitrate.” This approach to the positive duty to arbitrate is consistent with the
contractual character of the arbitral process.
As discussed elsewhere, the contents of an agreement to arbitrate are almost entirely mat-
ters of the parties’ choice.20 Party autonomy is one of the essential characteristics and enduring
attractions of international arbitration. This autonomy, and hence the contents of the positive
obligation to arbitrate, extend to the disputes to be arbitrated,21 parties to the arbitration,22
mode of constituting the arbitral tribunal,23 selection of the arbitral seat,24 language of the ar-
bitration,25 arbitral procedures26 and choice of the applicable law(s).27
Importantly, the positive obligation to participate in the resolution of disputes by arbitra-
tion also necessarily includes more general duties to participate in good faith, diligently and
cooperatively in the arbitral process. This follows both from the nature of the arbitral process
and from the general rule of pacta sunt servanda.28
As noted above, an arbitration agreement is not merely a negative undertaking not to lit-
igate, but a positive obligation to take part in a sui generis dispute resolution process which
requires a substantial degree of cooperation (e.g., in constituting a tribunal, paying the arbi-
trators, agreeing upon an arbitral procedure, obeying the arbitral procedure (notwithstand-
ing the absence of direct coercive powers of the arbitral tribunal) and complying with the
award).29 When a party agrees to arbitrate, it impliedly, but necessarily, agrees to participate
cooperatively and diligently in all of these aspects of the arbitral process.
As already noted, one of the fundamental characteristics and attractions of arbitration is
the parties’ freedom to design cooperatively the arbitral process and procedure.30 That free-
dom is mirrored by the implied contractual responsibility of the parties to take part in this
cooperative process, and in the other aspects of the arbitral process. Simply put, an agreement
to arbitrate necessarily entails a commitment to cooperate in good faith in the arbitral process,
with both the arbitral tribunal and other parties to the arbitration, in resolving the parties’
disputes in a fair, objective and efficient manner.31
20 See §1.01[A][2]; §1.02 (especially §1.02[B][3]); §1.04[E]; §2.02.

21 See §9.01; §§9.02[A]-[B] & [G].
22 See §10.01[A].
23 See §12.01[A].
24 See §14.01[B]; §§14.03[A] et seq.
25 See §11.05[B][2][a].
26 See §§15.01[A] et seq.
27 See §§4.04[B] et seq.; §19.04[A].
28 See also Dimolitsa, Arbitration Agreements and Foreign Investments: The Greek State, 5(4) J. Int’l Arb. 17,
39 (1988) (“international principle of the inviolability of the arbitration agreement is actually just a special
application of the principle of pacta sunt servanda which, together with the parallel application of good faith,
is strictly applied to arbitration agreements”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on In-
ternational Commercial Arbitration ¶627 (1999) (“The obligation to submit disputes covered by an arbitration
agreement to arbitration results from a straightforward application of the principle that parties are bound by
their contracts. This principle, which is often expressed as the maxim pacta sunt servanda, is probably the most
widely recognized rule of international contract law.”).
29 See Chapter 15.
30 See §1.02[B][6]; §15.02.
31 See Cremades, Good Faith in International Arbitration, 6 World Arb. & Med. Rev. 217 (2012); E. Gaillard
1353
§8.02[B] Effects and Enforcement of International Arbitration Agreements
These positive obligations are buttressed by the obligation to perform contractual obliga-
tions in good faith – crystallized in the pacta sunt servanda doctrine – which is recognized both
internationally32 and in all developed national legal systems.33 At the same time, as discussed
elsewhere, the New York Convention itself imposes duties of good faith on the parties in con-
nection with agreements to arbitrate.34
In some jurisdictions, obligations of cooperation, good faith and diligence are expressly
prescribed in national arbitration legislation. For example, §40 of the English Arbitration Act,
1996, provides:
“(1) The parties shall do all things necessary for the proper and expeditious conduct
of the arbitral proceedings. (2) This includes (a) complying without delay with any
determination of the tribunal as to procedural or evidential matters, or with any order
or directions of the tribunal, and (b) where appropriate, taking without delay any nec-
essary steps to obtain a decision of the court on a preliminary question of jurisdiction
or law.”35
& J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration ¶1165 (1999); B. Ha-
notiau, Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions 107 (2006) (“It is indeed
another basic principle of international commercial arbitration that the parties have the duty to cooperate in
good faith in the performance of their agreement as well as in the arbitral proceedings, e.g., at the stage of the
constitution of the arbitral tribunal”); Peters, International Dispute Settlement: A Network of Cooperational Du-
ties, 14 Euro. J. Int’l L. 1, 9 (2003) (“While the dispute itself implies disagreement and non-cooperation, some
kind of cooperation, in procedure or in substance, between the parties is needed for its resolution. Without
cooperation, no settlement. Therefore a general, customary law-based duty of cooperation with a view to a
settlement is inherent in the obligation to settle disputes peacefully.”); J.-F. Poudret & S. Besson, Comparative
Law of International Arbitration ¶375 (2d ed. 2007).
32 See, e.g., Final Award in ICC Case No. 5485, XIV Y.B. Comm. Arb. 156, 167 (1989); Lao Holdings NV
v. Laos, Award in ICSID Case No. ARB(AF)/12/6 of 6 August 2019, ¶234 (“The principle of good faith arises
in investment treaty arbitrations in various contexts. Tribunals, of course, regularly refer to Article 31(1) of
the Vienna Convention for the rule that treaties shall be interpreted in good faith. The obligation extends to
a duty of parties to arbitrate in good faith.”) (citing G. Born, International Commercial Arbitration 1008-14
(2d ed. 2014)); Mobil Inv. Canada Inc. v. Canada, Decision on Jurisdiction and Admissibility in ICSID Case No.
Arb/15/6 of 13 July 2018, ¶169 (“A party to a treaty is under a specific obligation to perform its obligations
under the treaty, derived from the principle pacta sunt servanda, which can reasonably be described as one of
the cornerstones of international law”); Electrabel SA v. Hungary, Award in ICSID Case No. ARB/07/19 of 25
November 2015, ¶4.125 (“by virtue of Article 26 of the Vienna Convention (‘Pacta sunt servanda’), States have
a duty to perform in good faith obligations binding on them under international law”); Himpurna Cal. Energy
Ltd v. PT (Persero) Perusahaan Listruik Negara, Final Award in Ad Hoc Case of 4 May 1999, XXV Y.B. Comm.
Arb. 13, 58-59 (2000) (“fundamental principle of pacta sunt servanda forms the bedrock of the civil law of
obligations everywhere”).
33 See, e.g., Judgment of 8 March 2006, DFT 132 III 389, 392 (Swiss Fed. Trib.); Hebei Imp. & Exp. Corp. v.
Polytek Eng’g Co., [1999] 1 HKLRD 665, 690 (H.K. Ct. Fin. App.); China Nanhai Oil Joint Serv. Corp. Shenzhen
Branch v. Gee Tai Holdings Co., XX Y.B. Comm. Arb. 671, 675-76 (H.K. Ct. First Inst. 1994) (1995) (party’s
obligation to arbitrate in good faith). See also Dimolitsa, Giving Evidence: Some Reflections on Oral Evidence and
on the Obligations and Rights of the Witnesses, in L. Lévy & V. Veeder (eds.), Arbitration and Oral Evidence 11, 16
(2005) (“parties’ obligation to act fairly in the contractual relationship is extended into the dispute”).
34 See §5.02[A][2][i]; §5.02[A][5][h]; Hebei Imp. & Exp. Corp. v. Polytek Eng’g Co., [1999] 1 HKLRD 665,
690 (H.K. Ct. Fin. App.); China Nanhai Oil Joint Serv. Corp. Shenzhen Branch v. Gee Tai Holdings Co., XX Y.B.
Comm. Arb. 671, 677 (H.K. Ct. First Inst. 1994) (1995) (“on a true construction of the Convention there is in-
deed a duty of good faith” imposed by its terms). See also A. van den Berg, The New York Arbitration Convention
of 1958 185 (1981) (“principle of good faith may be deemed enshrined in the Convention’s provisions”).
35 English Arbitration Act, 1996, §40.
1354
Likewise, the French Code of Civil Procedure provides that “[b]oth parties and arbitrators
shall act diligently and in good faith in the conduct of the [arbitral] proceedings.”36 A few
other national arbitration statutes are similar, including express provisions regarding the
positive obligations to arbitrate diligently and in good faith.37
Even absent such statutory provisions, national courts and other authorities have uni-
formly recognized the positive obligations imposed by agreements to arbitrate. Consistent
with the pacta sunt servanda principle, and the basic character of an arbitration agreement,38
national courts have repeatedly emphasized that an agreement to arbitrate imposes obliga-
tions to make use of, and participate cooperatively and diligently in, the contractual arbitral
process.
For example, it is well settled under English law that there is an implied term in an agree-
ment to arbitrate that the parties must cooperate in accordance with the applicable arbitral
rules in the conduct of the arbitration. In a leading decision, the House of Lords reasoned as
follows:
“[T]he obligation is, in my view, mutual: it obliges each party to cooperate with the other
in taking appropriate steps to keep the procedure in the arbitration moving, whether he
happens to be the claimant or the respondent in the particular dispute. … [I]t is in my
view a necessary implication from their having agreed that the arbitrator shall resolve
their dispute that both parties, respondent as well as claimant, are under a mutual ob-
ligation to one another to join in applying to the arbitrator for appropriate directions
to put an end to the delay.”39
36 French Code of Civil Procedure, Art. 1464.

37 See, e.g., Scottish Arbitration Act, Schedule 1, Rule 25 (“The parties must ensure that the arbitration is
conducted – (a) without unnecessary delay, and (b) without incurring unnecessary expense”); Victoria Com-
mercial Arbitration Act, §24B(3) (“A party must not willfully do or cause to be done any act to delay or prevent
an award being made”); Peruvian Arbitration Law, Art. 38 (“The parties are obliged to observe the good faith
principle in all their actions and interventions during the arbitral proceedings and to cooperate with the arbitral
tribunal in the development of the arbitration”); Kenyan Arbitration Act, §19A (“The parties to arbitration
shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings”). See also Span-
ish Arbitration Act, Art. 21 (“Acceptance requires arbitrators and, as appropriate, the arbitral institution, to
comply with their commission in good faith”); Latvian Arbitration Law, Art. 22 (“An arbitrator shall exercise
his or her duties in good faith disobeying influence of any kind”).
38 U.N. Economic and Social Council, Draft on Arbitral Procedure Prepared by the International Law Commis-
sion at Its Fourth Session, U.N. Doc. A/CN.4/59, Art. 1(3) (1952) (“The undertaking [to arbitrate] constitutes
a legal obligation which must be carried out in good faith, whatever the nature of the agreement from which it
results”), Art. 15(2) (“The parties shall cooperate with one another and with the tribunal in the production of
evidence and comply with the measures ordered by the tribunal for this purpose”). See also Peters, International
Dispute Settlement: A Network of Cooperational Duties, 14 Euro. J. Int’l L. 1 (2003).
39 Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Shipping Corp. [1981] AC 909, 983, 986 (House
of Lords) (emphasis added). See also Wilson & Co. v. Partenreederei Hannah Blumenthal [1982] 3 WLR 1149,
1160 (House of Lords); Anzen Ltd v. Hermes One Ltd [2016] UKPC 1, ¶34 (U.K. Privy Council) (“Parties to an
agreement to arbitrate are … under mutual obligations to one another to cooperate in the pursuit of the arbitra-
tion”). Compare Indescon Ltd v. Ogden [2004] EWHC 2326, ¶¶42-43 (TCC) (English High Ct.) (respondent
had no responsibility for delay in prosecuting claims and had no obligation to take steps to appoint arbitrator);
China Mach. New Energy Corp. v. Jaguar Energy Guatemala LLC, [2018] SGHC 101, ¶¶195-96 (Singapore High
Ct.) (“[A]n agreement to arbitrate is an agreement to participate in a process that requires the mutual cooper-
ation of the parties. A duty to cooperate in the arbitral process is therefore not so much implied as inherent in
the very nature of an arbitration agreement.”) (citing G. Born, International Commercial Arbitration 1257-59 (2d
ed. 2014)).
1355
A Swiss Federal Tribunal decision adopted similar conclusions, emphasizing the parties’ ob-
ligations of good faith:
“One of the aims of arbitration is to come to a fast resolution of the disputes submitted
to it. The parties who agree to arbitration are bound by the rules of good faith to avoid
any conduct which might delay without absolute necessity the normal conduct of the
arbitral proceedings.”40
Other national courts have formulated this duty of good faith, cooperation and diligence
in similar terms,41 as has the weight of commentary.42 For example, a U.S. court held that
“[p]arties to an arbitration agreement are under a duty to act in good faith – each owes to the
other the obligation to make a fair effort to carry out the provisions of the arbitration agree-
ment and to accomplish the real object of the contract.”43 As another U.S. court reasoned,
“the underlying purpose of arbitration, i.e., efficient and swift resolution of disputes without
protracted litigation, could not be achieved but for good faith arbitration by the parties.”44
Arbitral tribunals have adopted similar conclusions regarding the parties’ obligation to
arbitrate in good faith.45 In the words of one tribunal, “[a]ccording to good faith, the parties
to an international arbitration must in particular facilitate the proceedings and abstain from
all delaying tactics.”46 Similarly, several ICC awards have held that there is a contractual obli-
40 Judgment of 10 May 1982, DFT 108 Ia 197, 201 (Swiss Fed. Trib.).
41 See §8.02[B].
42 See Bédard, Nelson & Kalantirsky, Arbitrating in Good Faith and Protecting the Integrity of the Arbitral
Process, 2010 Paris J. Int’l Arb. 737; B. Berger & F. Kellerhals, International and Domestic Arbitration in Switzer-
land ¶¶1157 et seq. (3d ed. 2015); Cremades, Good Faith in International Arbitration, 6 World Arb. & Med. Rev.
217 (2012); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration
¶¶627-34 (1999); R. Merkin, Arbitration Law ¶¶16.1, 16.5 et seq. (1991 & Update March 2019); Peters, Inter-
national Dispute Settlement: A Network of Cooperational Duties, 14 Euro. J. Int’l L. 1, 9 (2003) (“general duty
to cooperate in dispute settlement”); Reymond, Note sur l’Avance des Frais de l’Arbitrage et sa Répartition, in
J. Haldy, J.-M. Rapp & P. Ferrari (eds.), Etudes de Procedure et d’Arbitrage en l’Honneur de Jean-Francois Poudret
495, 498 (1999) (“[The] parties’ obligation to act in good faith to contribute to the organization and further-
ance of the arbitration results from [the arbitration agreement]. This means that the arbitration agreement,
in addition to the principal obligation to submit the dispute to arbitration, gives rise to implicit rights and
obligations to an extent necessary to perform the agreement.”).
43 Niazi v. St. Paul Mercury Ins. Co., 121 N.W.2d 349, 356 (Minn. 1963). See also Partners Designs, Inc. v. City
of Lonsdale, 697 N.W.2d 629, 635 n.4 (Minn. Ct. App. 2005). Compare Community Duerlein v. N.J. Auto. Full Ins.
Underwriting Ass’n, 619 A.2d 664, 667 (N.J. Super. Ct. App. Div. 1993); R.M. Bennett Heirs v. Ontario Iron Co.,
426 N.W.2d 921, 924 (Minn. Ct. App. 1988).
44 ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 87 (2d Cir. 2009). See also Instinet Corp.
v. Archipelago Sec., LLC, 2003 WL 22721404, at *8 (N.Y. Sup. Ct.) (“[petitioner’s] failure or refusal to make a
timely forum selection, followed by its capricious insistence upon a perverse choice of forum, is conspicuously
meant to delay the arbitration procedures interminably and, in effect, to deny arbitration where it was agreed
upon, in violation of its obligation of good faith and fair dealing”).
45 See, e.g., Partial Award in ICC Case No. 3896, 110 J.D.I. (Clunet) 914 (1983) (parties have obligation of
good faith not to unduly delay arbitral proceedings); Award in ICC Case No. 1434, 103 J.D.I. (Clunet) 978
(1976) (parties have obligation to cooperate in evidence-taking by tribunal); Unreported Award in ICC Case,
excerpted in Habegger, Document Production: An Overview of Swiss Court and Arbitration Practice, in ICC, Doc-
ument Production in International Arbitration 21, 28-29 (2006) (parties’ disclosure obligations “correspond …
to a generally acknowledged procedural rule in international arbitration deriving from the obligation of the
parties to cooperate in good faith in the proceedings”); Lao Holdings NV v. Laos, Award in ICSID Case No.
ARB(AF)/12/6 of 6 August 2019.
46 Award in ICC Case No. 8486, XXIV Y.B. Comm. Arb. 163, 171 (1999).
1356
gation between the parties to pay the advance on costs for the arbitrators’ fees and expenses.47
As one authority concluded, based on a review of these awards:
“The parties cannot agree to refer their dispute to arbitration and at the same time
retain the freedom not to do whatever needs to be done to make arbitration possible,
as they would then be in breach of their obligation to act in good faith. In fact, although
this obligation is specifically laid down in Article 30(3) of the [1998] ICC Rules, it is
inherent in any arbitration agreement.”48
These decisions by national courts and arbitral tribunals reflect a general principle of inter-
national arbitration law: absent contrary indications, an international arbitration agreement
imposes obligations of good faith and diligence requiring the parties to cooperate in the
conduct of the arbitration, refraining from obstruction of the arbitral process, and instead
complying with the agreed procedural rules and affirmatively collaborating in fashioning an
efficient and evenhanded arbitral process. The parties’ obligations to arbitrate in good faith
are of particular importance because of the special nature of an agreement to arbitrate. It is
a sui generis contractual provision designed to operate only when contracting parties have
fallen into dispute, and then to regulate and require consensual resolution of those disputes
in a binding and cooperative manner. In these circumstances, obligations of good faith and
diligence are particularly important.49
The precise contours of the obligation to participate cooperatively, diligently and in
good faith in the arbitral process are varied and potentially complex. The duties of dili-
gence and good faith cooperation in the arbitral process have been held to include par-
ticipating in the constitution of the arbitral tribunal,50 paying the arbitrators’ fees and any
47 See, e.g., Unreported Award in ICC Case of 2008, excerpted in Darwazeh & Greenberg, No One’s Credit Is
as Good as Cash: Awards and Orders for the Payment of the ICC Advance on Costs, 31 J. Int’l Arb. 557, 562 (2014)
(“the agreement to arbitrate is a separate contract which differs in its nature from the contract on the merits
inasmuch as it is a contract of a procedural nature, but it is a contract nevertheless, giving rise to a procedural
obligation to provide the advance on costs”); Partial Award in ICC Case No. 11330, cited in Secomb, Awards
and Orders Dealing with the Advance on Costs in ICC Arbitration: Theoretical Questions and Practical Problems,
14(1) ICC Ct. Bull. 59, 63 (2003) (“the parties in arbitrations conducted under the ICC Rules have a mutually
binding obligation to pay the advance on costs as determined by the ICC Court, based on Art. 30-3 ICC Rules
which – by reference – forms part of the parties’ agreement to arbitrate under such Rules”); Interim Award in
ICC Case of 26 March 2002, 21 ASA Bull. 802, 807-08 (2003); Partial Award in ICC Case No. 10671, 19 ASA
Bull. 285 (2001); Award in ICC Case No. 10526, 126 J.D.I. (Clunet) 1179 (2001). See generally W. Craig, W. Park
& J. Paulsson, International Chamber of Commerce Arbitration ¶¶14.02 et seq. (3d ed. 2000) (“By agreeing to
ICC arbitration the parties have bound themselves to abide by the Rules. This clearly includes the payment of
advances on costs, which is the obligation of both parties.”); Y. Derains & E. Schwartz, A Guide to the ICC Rules
of Arbitration 343 (2d ed. 2005) (“The parties are nevertheless generally considered, under Article 30(3), to
have an obligation, during the course of the arbitration, to share equally in the payment of the advance fixed by
the Court …”); Secomb, Awards and Orders Dealing with the Advance on Costs in ICC Arbitration: Theoretical
Questions and Practical Problems, 14(1) ICC Ct. Bull. 59 (2003).
48 Fadlallah, Payment of the Advance to Cover Costs in ICC Arbitration: The Parties’ Reciprocal Obligations,
14(1) ICC Ct. Bull. 53, 55-56 (2003).
49 See §1.02[B]; §1.05; §§2.02 et seq.
50 See, e.g., Nat’l Iranian Oil Co. v. Israel, Partial Award in Ad Hoc Case of 10 February 2012, discussed in
Scherer & Baizeau, Swiss Federal Supreme Court Confirms NIOC vs. Israel Award: No Review of French Court
Decision to Appoint Arbitrator in Order to Avoid International Denial of Justice, 31 ASA Bull. 400, 402 (2013)
(agreement to arbitrate imposes obligation on party to nominate arbitrator); Safond Shipping Sdn Bhd v. E. Asia
Sawmill Corp., [1993] HKCFI 151, ¶19 (H.K. Ct. First Inst.) (“All the time and expense have been caused by
(a) the defendant’s flagrant breach of its contractual obligations to arbitrate any dispute that may arise and …
1357
required advances,51 cooperating with the arbitrators in relation to procedural matters,52 not
obstructing or delaying the arbitral process,53 obeying confidentiality obligations relating
to appoint an arbitrator when called to do so and (b) its complete defiance of these proceedings brought simply
to give effect to the agreed dispute resolution mechanism”); China Ocean Shipping Co. v. Mitrans Maritime Pan-
ama SA, XX Y.B. Comm. Arb. 282 (H.K. Ct. First Inst. 1993) (1995); Uganda Post Ltd v. R.4 Int’l Ltd, [2009]
UGCADER 5 (Ugandan Ctr Arb. & Disp. Resol.) (parties have mutual obligation to participate in constitution
of arbitral tribunal); Mvungu v. Bruno Rosiello, Misc. Civil Case No. 264/2006 (Nairobi High Ct.) (parties
obligated to suggest possible candidates for arbitrator); Müller & Riske, Article 178 PILS, in M. Arroyo (ed.),
Arbitration in Switzerland: The Practitioner’s Guide 96 (2d ed. 2018) (“the parties to an arbitration agreement
have to do everything in their power to aid the constitution of the arbitral tribunal”); §12.01[A]; §12.01[C][2].
51 See, e.g., Judgment of 19 December 1996, Qualiconsult v. Groupe Lincoln, 1998 Rev. Arb. 121 (Paris Cour
d’Appel). See also Gaillard, Refusal by A Party (a) to Make Advance Deposits for the Costs of the Arbitration, and
(b) to Submit A Statement of Defence, in A. van den Berg (ed.), Preventing Delay and Disruption of Arbitration 104
(1990); A. Reiner, Das neue Österreichische Schiedsrecht: SchiedsRÄG 2006 §593, ¶101 (2006) (“The arbitra-
tion agreement, as well as the duty of cooperation and procedural diligence deriving therefrom … give rise, in
the absence of an agreement to the contrary, to a substantive obligation [for the parties] to pay their share of the
advance on costs”); Reymond, Note sur l’Avance des Frais de l’Arbitrage et sa Répartition, in J. Haldy, J.-M. Rapp
& P. Ferrari (eds.), Etudes de Procedure et d’Arbitrage en l’Honneur de Jean-Francois Poudret 495, 498 (1999)
(“general obligation to further the advancement of the arbitration results in the parties’ reciprocal duty to cover
the fees of the arbitration, not only when the final award is executed, which is self-evident, but already by abid-
ing to the arbitrator’s requests [to make such payment] as the proceedings progress and as determined by the
arbitrator himself”); Wenger, Article 178 PILS, in S. Berti et al. (eds.), International Arbitration in Switzerland
¶71 (2000) (“arbitration agreement contains the implicit obligation that each party make an advance payment
towards the prospective costs of the arbitral proceedings in the amount ordered by the arbitral tribunal …”).
Compare Juiceme, LLC v. Booster Juice LP, 730 F.Supp.2d 1276, 1281 (D. Or. 2010) (defendant’s failure to pay ar-
bitration costs did not constitute “failure, neglect, or refusal of another to arbitrate under a written agreement”
under FAA); §13.06[A].
52 See, e.g., English Arbitration Act, 1996, §§40(1), (2)(a) (“The parties shall do all things necessary for the
proper and expeditious conduct of the arbitral proceedings [including] complying without delay with any deter-
mination of the tribunal as to procedural or evidential matters”) (emphasis added); Judgment of 21 November 2003,
DFT 130 III 66, 72 (Swiss Fed. Trib.) (“parties are required – pursuant to the obligation to act in good faith and
the prohibition of abuse of rights, which is also valid in procedural law – to raise any objection they have with
respect to the jurisdiction or the composition of the arbitral tribunal at the earliest possible stage”). See also
D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 671 (2d ed. 2013) (“There are few
more disruptive forces in arbitration than a party’s unwillingness to engage in the proceedings …”); Gaillard,
Unjustified Failure of A Party to Comply with Directions of the Tribunal Relating to Timely Written Submissions and
Presentation of Evidence: Law and Court Decisions in Civil Law Countries, in A. van den Berg (ed.), Preventing
Delay and Disruption of Arbitration 203 (1990) (“By entering into an arbitration agreement, both parties have
agreed to cooperate in the arbitration procedure …”); Müller & Riske, Article 178 PILS, in M. Arroyo (ed.),
Arbitration in Switzerland: The Practitioner’s Guide 96 (2d ed. 2018) (“the parties to an arbitration agreement
have to do everything in their power to aid the constitution of the arbitral tribunal and for the unimpeded
conduct of the arbitral proceedings up until the moment that an award is rendered by the arbitral tribunal”); G.
Petrochilos, Procedural Law in International Arbitration 216 (2004) (“parties are under a duty to cooperate in
good faith with each other and the tribunal in order to formulate precise rules of conduct”); §13.06[B].
53 See, e.g., Niazi v. St. Paul Mercury Ins. Co., 121 N.W.2d 349, 356 (Minn. 1963); Paal Wilson & Co. AS v.
Partenreederei Hannah Blumenthal [1983] 1 AC 854, 887 (House of Lords) (“mutual obligation of co-operation
between both parties” to arbitration agreement); Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Ship-
ping Corp. [1981] AC 909, 983 et seq. (House of Lords) (“there are mutual obligations to be implied into the
parties’ agreement not to obstruct or frustrate the purpose of the agreement”); Judgment of 18 February 1983,
DFT 109 Ia 81, 83 (Swiss Fed. Trib.) (“one of the purposes of arbitration is to enable the rapid settlement of
disputes, so that the parties are bound pursuant to the rules of good faith to avoid anything which could delay
without absolute necessity the normal course of the arbitration procedure”); Judgment of 10 May 1982, DFT
108 Ia 197, 201 (Swiss Fed. Trib.); China Machine New Energy Corp. v. Jaguar Energy Guatemala LLC, [2018]
1358
Gary B. Born §8.02[C]
to the arbitration,54 complying with disclosure requests, orders and awards,55 appointing
arbitrators,56 and establishing the procedural rules for the arbitration.57
The duty of cooperation arguably also includes complying (and causing a party’s counsel
to comply) with applicable ethical obligations governing the conduct of counsel in the arbitral
proceedings.58
As with most other aspects of the arbitral process, these obligations to participate in the ar-
bitral process are the subject of party autonomy,59 and can be altered or elaborated by contract.
U.S. courts have also found breaches of arbitration agreements where one party is responsible
for prescribing the procedural rules for the arbitration, and it adopts biased or unfair rules.60
These obligations arise from the parties’ agreement to arbitrate, rather than from their under-
lying contract or dispute.61
[C] Remedies for Breach of Positive Obligation to Arbitrate

The remedies available for breach of the positive obligations of an international arbitration
agreement are complex. As discussed below, the New York Convention (and other author-
ities) make it clear that the negative effects of an arbitration agreement are capable of being
enforced, principally implemented through orders directing specific performance. That is,
a national court will give effect to the parties’ commitment not to litigate their disputes by
SGHC 101 (Singapore High Ct.). See also Dasser & Gauthey, La Bonne Foi dans l’Arbitrage, 33 ASA Bull. 239,
249 (2015); Peters, International Dispute Settlement: A Network of Cooperational Duties, 14 Euro. J. Int’l L. 1, 22
(2003) (“doctrine of non-frustration of adjudication is an important corollary to obligations to cooperate”)
(emphasis omitted).
54 See Chapter 20.
55 See Unreported Award in ICC Case, excerpted in Habegger, Document Production: An Overview of Swiss
Court and Arbitration Practice, in ICC, Document Production in International Arbitration 21, 28-29 (2006) (par-
ties’ disclosure obligations “correspond[] to a generally acknowledged procedural rule in international arbitra-
tion deriving from the obligation of the parties to cooperate in good faith in the proceedings”); Award in ICC
Case No. 1434, 103 J.D.I. (Clunet) 978 (1976) (parties have obligation to cooperate in evidence-taking request-
ed by tribunal); U.N. Economic and Social Council, Draft on Arbitral Procedures Prepared by the International
Law Commission at Its Fourth Session, U.N. Doc. A/CN.4/59, Arts. 1(3), 15(2) (1952); Chapter 16.
56 Nat’l Iranian Oil Co. v. Israel, Partial Award in Ad Hoc Case of 10 February 2012 (agreement to arbitrate im-
poses obligation on party to nominate arbitrator), discussed in Scherer & Baizeau, Swiss Federal Supreme Court
Confirms NIOC vs. Israel Award: No Review of French Court Decision to Appoint Arbitrator in Order to Avoid In-
ternational Denial of Justice, 31 ASA Bull. 400, 402 (2013). Compare Indescon Ltd v. Ogden [2004] EWHC 2326,
¶42-43 (TCC) (English High Ct.) (respondent had no obligation to take steps to appoint an arbitrator, noting
that “[s]hould the applicant still intend to prosecute its claims under the 1992 notice, it is open to it to seek the
respondent’s agreement to an arbitrator, or failing such agreement to apply unilaterally for the appointment of
an arbitrator to the Chartered Institute of Arbitrators”).
57 See Peters, International Dispute Settlement: A Network of Cooperational Duties, 14 Euro. J. Int’l L. 1, 16
(2003) (“good faith relates to all stages of the settlement procedure”).
58 See §21.03[C][1] (party sanctioned for misconduct of counsel in arbitration).
59 See §11.05[B][2]; §15.02.
60 See J.-F. Poudret & S. Besson, Comparative Law of International Arbitration ¶443 (2d ed. 2007) (“parties’
obligation to remunerate the arbitrators results from the contract with the arbitrators and is not part of the main
dispute submitted to arbitration”).
61 See, e.g., Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938-39 (4th Cir. 1999) (employer materially breached
arbitration agreement “by promulgating rules so egregiously unfair as to constitute a complete default of its
contractual obligation to draft arbitration rules and to do so in good faith”); Penn v. Ryan’s Family Steakhouses,
Inc., 95 F.Supp.2d 940, 948 (N.D. Ind. 2000) (same).
1359
§8.02[C] Effects and Enforcement of International Arbitration Agreements
dismissing or staying actions purporting to pursue such litigation62 or by antisuit injunctions

enjoining parties from pursuing litigation in breach of the parties’ agreement to arbitrate.63
On the other hand, the remedies to enforce the positive effects of arbitration agreements (e.g.,
the obligations to participate cooperatively and in good faith in the arbitration) are less clear.
As noted above, Article II(3) of the New York Convention and Article 8(1) of the
UNCITRAL Model Law provide that, if a valid arbitration agreement exists, courts in
Contracting States shall “refer the parties to arbitration.”64 The wording of that phrase fairly
strongly suggests an obligation on national courts affirmatively to order or direct the parties to
proceed with the arbitration of their dispute (rather than merely an obligation, like that argu-
ably provided in Article II(1),65 not to permit litigation to proceed). An obligation to “refer”
parties to arbitration connotes some affirmative direction or order, not merely a refusal to
entertain litigation.
Despite that, virtually none of the Convention’s Contracting States or Model Law’s adher-
ents enforce arbitration agreements by way of orders directing a party specifically to perform
the positive aspects of such agreements.66 Rather, the consistent approach is only to dismiss
or stay litigation brought in breach of an agreement to arbitrate, and not to affirmatively order
or compel participation by a party in arbitral proceedings.
The absence of judicial authority, in many jurisdictions, to order a party to perform its pos-
itive obligation to arbitrate can be traced to historic English common law hostility to arbitra-
tion agreements, and in particular to the rule that arbitration agreements were not specifically
enforceable. Thus, a 1911 English appellate decision held:
“The parties could not be compelled to go to arbitration. They cannot now; but an
appeal to the courts can be stopped and that indirectly enforces the arbitration clause.
Therefore the status of an arbitration clause in England is that it will not be specifically
enforced, but by proper proceedings you can prevent the other party from appealing
to the English courts in respect of any matter which by contract ought to be decided
by arbitration.”67
In substance, the English court held that it would give effect to the negative obligations of an
agreement to arbitrate (i.e., by refusing to permit litigation of an arbitrable dispute), but that it
would not directly enforce the positive obligations of that agreement (i.e., by ordering a party
affirmatively to arbitrate). The same position is almost uniformly followed today by Contract-
ing States to the New York Convention.
62 See §8.03[C].
63 See §8.03[C][6].
64 See §8.02[C].
65 Article II(1) of the Convention requires only that courts of Contracting States “recognize” agreements to
arbitrate. See New York Convention, Art. II(1). See §2.01[A][1][a]; §5.01[B][2].
66 See, e.g., N. Blackaby et al. (eds.), Redfern and Hunter on International Arbitration ¶1.14 (6th ed. 2015);
Samuels, Arbitration Statutes in England and the US, 8 Arb. & Disp. Resol. L.J. 2 (1999); A. van den Berg, The
New York Arbitration Convention of 1958 129-31 (1981) (“meaning of the expression in its technical procedural
sense must be deemed to be the court directive staying the court proceedings on the merits”; “[s]uch a court
directive is unknown in the majority of countries”).
67 Pena Copper Mines Ltd v. Rio Tinto Co. [1911-13] All ER 209, 214 (English Ct. App.). See also W. Tankers
v. RAS Riunione Adriatica di Sicurta SpA [2007] UKHL 4, ¶19 (House of Lords) (“The Courts of the United
Kingdom have for many years exercised the jurisdiction to restrain foreign court proceedings as Colman J did
in … Pena Copper. … It is generally regarded as an important and valuable weapon in the hands of a court
exercising supervisory jurisdiction over the arbitration. It promotes legal certainty and reduces the possibility
of conflict between the arbitration award and the judgment of a national court.”).
1360
The only major exception to this approach is the United States, where the FAA provides
for the issuance of orders affirmatively compelling arbitration (under §4, §206 and §303 of
the FAA).68 These provisions empower a U.S. court to grant what amounts to an injunction
requiring a party to arbitrate pursuant to its arbitration agreement.69 In the words of one U.S.
lower court, a request for affirmative relief under §4 (or §206 and §303) “is simply a request
for an order compelling specific performance of part of a contract.”70
U.S. courts have explained (rightly) that there are important differences between a stay of
litigation and an order affirmatively compelling arbitration:
“The first merely arrests further action by the court itself in the suit until something
outside the suit has occurred; but the court does not order that it shall be done. The
second … affirmatively orders that someone do (or refrain from doing) some act out-
side the suit.”71
Pursuant to §4, §206 and §303 of the FAA, U.S. courts have frequently ordered recalcitrant
parties to international arbitration agreements to comply with their positive arbitration obli-
gations.72 In so doing, they have emphasized that the issuance of such an order is not a matter
68 U.S. FAA, 9 U.S.C. §4, §206, §303 (“A court having jurisdiction under this chapter may direct that arbi-
tration be held in accordance with the agreement at any place therein provided for, whether that place is within
or without the United States. Such court may also appoint arbitrators in accordance with the provisions of
the agreement.”). See also Restatement of the U.S. Law of International Commercial and Investor-State Arbitration
§§2.1(a)-(b) (2019) (arbitration agreement enforced by stay or order compelling arbitration).
Some commentators have suggested that §206 does not contemplate orders compelling arbitration. See
A. van den Berg, The New York Arbitration Convention of 1958 130 (1981) (“thrust of §206 is not the com-
pulsion to arbitrate but rather the possibility for a United States court to direct that arbitration can be held in
another country”). This view is not consistent with either the statutory language or U.S. historical practice, or
with U.S. judicial applications of the provision. See §8.02[C].
69 Section 4 applies to “any United States district court which, save for [the arbitration] agreement, would
have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the
controversy between the parties.” U.S. FAA, 9 U.S.C. §4. See also Vaden v. Discover Bank, 556 U.S. 49, 71 (U.S.
S.Ct. 2009) (“Under the FAA, state courts as well as federal courts are obliged to honor and enforce agree-
ments to arbitrate”).
70 Joseph Muller Corp. v. Commonwealth Petrochemicals, Inc., 334 F.Supp. 1013, 1018 (S.D.N.Y. 1971). See
also McCormick v. Am. Online, Inc., 909 F.3d 677, 682 (4th Cir. 2018) (“The FAA makes §4 a procedural gate to
arbitration, directing courts to compel arbitration if agreed to in writing …”); Educ. Mgt Servs., LLC v. Tracey,
2015 WL 4041664, at *2 (W.D. Tex.) (“a motion to compel arbitration under §4 of the FAA is a request that
the court compel specific performance of an agreement to arbitrate, and may be made in any district court
which has subject matter jurisdiction over the underlying dispute”); Hightower v. JPMorgan Chase Bank, NA,
2014 WL 12558114, at *13 (C.D. Cal.) (“A petition to compel arbitration ‘is in essence a suit in equity to compel
specific performance of a contract’”) (quoting Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal.4th 394, 411 (Cal.
1996)); Bellingham Marine Indus. Inc. v. Del Rey Fuel, LLC, 2012 WL 12941958, at *4 (C.D. Cal.) (“‘The right
to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific
performance of that contract’”) (quoting Lopez v. Charles Schwab & Co., 118 Cal.App.4th 1224, 1229 (Cal. Ct.
App. 2004)); Slatnick v. Deutsche Bank AG, 2006 U.S. Dist. LEXIS 94836, at *15 (S.D. Cal.) (“A motion to com-
pel arbitration ‘is simply a suit in equity seeking specific performance of that contract’”) (quoting Lopez, 118
Cal.App.4th at 1229); Fujian Pac. Elec. Co. v. Bechtel Power Corp., 2004 U.S. Dist. LEXIS 23472, at *12-13 (N.D.
Cal.) (“‘petition to compel arbitration is simply a suit in equity seeking specific performance of that contract’”)
(quoting Cione v. Foresters Equity Servs., Inc., 68 Cal.Rptr.2d 167 (Cal. Ct. App. 1997)).
71 Kulukundis Shipping Co. SA v. Amtorg Trading Corp., 126 F.2d 978, 987 (2d Cir. 1942).
72 See, e.g., Answers in Genesis of Ky., Inc. v. Creation Ministries, 556 F.3d 459 (6th Cir. 2009); Sourcing Un-
limited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38 (1st Cir. 2008); Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir.
2005); Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs. Inc., 369 F.3d 645 (2d Cir. 2004);
1361
of discretion, but a mandatory legal right (guaranteed by the FAA) on the part of the party
invoking the arbitration clause:
“So long as the parties are bound to arbitrate and the district court has personal juris-
diction over them, the court is under an unflagging, nondiscretionary duty to grant a
timely motion to compel arbitration and thereby enforce the New York Convention
as provided in chapter 2 of the FAA, even though the agreement in question requires
arbitration in a distant forum.”73
As discussed above,74 the FAA applies equally in this regard to agreements to arbitrate in the
United States and agreements to arbitrate abroad. Thus, U.S. courts have issued orders com-
pelling arbitration in arbitrations seated in both the United States and in other countries.75
Smith/Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 99 (2d Cir. 1999); Riley v. Kingsley
Underwriting Agencies, Ltd, 969 F.2d 953 (10th Cir. 1992); David L. Threlkeld & Co. v. Metallgesellschaft Ltd,
923 F.2d 245 (2d Cir. 1991); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822 (2d Cir. 1990); J.J. Ryan &
Sons, Inc. v. Rhone Poulenc Textile, SA, 863 F.2d 315 (4th Cir. 1988); Sedco, Inc. v. Petroleos Mexicanos Mexican
Nat’l Oil Co., 767 F.2d 1140 (5th Cir. 1985); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.
1983); Rhone Mediterranee v. Achille Lauro, 712 F.2d 50 (3d Cir. 1983); Becker Autoradio U.S.A., Inc. v. Becker
Autoradiowerk GmbH, 585 F.2d 39 (3d Cir. 1978); GlobalOne Mgt Group Ltd v. Tempus Applied Solutions LLC,
2018 WL 6440890 (E.D. Va.); Terra Fin. LLC v. Acrow Corp. of Am., 2017 WL 499673 (S.D.N.Y.); Nationwide
Agribusiness Ins. Co. v. Buhler Barth GmbH, 2015 WL 6689572 (E.D. Cal.); Hughes, Hooker & Co. v. Am. Steam-
ship Owners Mut. Protection & Indem. Ass’n, Inc., 2005 WL 1384055 (S.D.N.Y.); Magsino v. Spiaggia Maritime,
Ltd, 2004 WL 2578922 (E.D. La.); Boston Telecommc’ns Group, Inc. v. Deloitte Touche Tohmatsu, 278 F.Supp.2d
1041 (N.D. Cal. 2003); Marubeni Corp. v. Mobile Bay Wood Chip Ctr, 2003 WL 22466215 (S.D. Ala.); Antillean
Marine Shipping Corp. v. Through Transp. Mut. Ins., Ltd, 2002 WL 32075793 (S.D. Fla.); Federico v. Charterers
Mut. Assur. Ass’n Ltd, 158 F.Supp.2d 565 (E.D. Pa. 2001); Chloe Z Fishing Co. v. Odyssey Re (London) Ltd, 109
F.Supp.2d 1236 (S.D. Cal. 2000); Siderius, Inc. v. Compania de Acero del Pacifico, SA, 453 F.Supp. 22 (S.D.N.Y.
1978); Ferrara SpA v. United Grain Growers, Ltd, 441 F.Supp. 778 (S.D.N.Y. 1977); Antco Shipping Co. v. Sid-
ermar SpA, 417 F.Supp. 207 (S.D.N.Y. 1976); Star-Kist Foods, Inc. v. Diakan Hope, SA, 423 F.Supp. 1220 (C.D.
Cal. 1976).
73 InterGen NV v. Grina, 344 F.3d 134, 142 (1st Cir. 2003). See also id. at 141 (“it clearly appears that en-
forcing arbitration clauses under the New York Convention is an obligation, not a matter committed to district
court discretion”); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219 (U.S. S.Ct. 1985) (“[T]he Arbitration
Act requires district courts to compel arbitration. … By its terms, the Act leaves no room for the exercise of
discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to
arbitration on issues as to which an arbitration agreement has been signed.”); Slinger Mfg Co. v. Nemak, 2008
WL 4425889 (E.D. Wis.) (“if the Court identifies an arbitrable issue, it must issue a stay”).
74 See §2.04[B].
75 See §14.08[B][2]; Strategic Asset Group, LLC v. Shabanets, 2018 WL 8131760 (C.D. Cal.) (ordering
parties to arbitrate in Russia); Tierra Verde Escape, LLC v. Brittingham Group, LLC, 2017 WL 3699554 (W.D.
Mich.) (compelling arbitration in Hong Kong under New York Convention); Dahir v. Royal Caribbean Cruises,
Ltd, 275 F.Supp.3d 826 (S.D. Tex. 2017) (compelling arbitration under New York Convention); Terra Holding
GmbH v. Unitrans Int’l, Inc., 124 F.Supp.3d 745 (E.D. Va. 2015) (ordering parties to arbitrate in Lithuania);
Kastner v. Vanbestco Scandanavia, AB, 2014 WL 6682440 (D. Vt.) (ordering parties to arbitrate in Canada);
Viator v. Dauterive Contractors, Inc., 638 F.Supp.2d 641 (E.D. La. 2009) (ordering parties to arbitrate in En-
gland); Invista N. Am. Sarl v. Rhodia Polyamide Intermediates sas, 503 F.Supp.2d 195, 207 (D.D.C. 2007) (order-
ing parties to arbitrate in Switzerland); Sea Bowld Marine Group, LDC v. Oceanfast Pty, Ltd, 432 F.Supp.2d 1305,
1319 (S.D. Fla. 2006) (ordering parties to arbitrate in Australia); Ibeto Petrochemical Indus., Ltd v. MT Beffen,
412 F.Supp.2d 285, 293 (S.D.N.Y. 2005) (ordering parties to arbitrate in England); Acosta v. Norwegian Cruise
Line, Ltd, 303 F.Supp.2d 1327, 1332 (S.D. Fla. 2003) (ordering parties to arbitrate in Philippines); Marubeni
Corp. v. Mobile Bay Wood Chip Ctr, 2003 WL 22466215, at *19 (S.D. Ala.) (ordering parties to arbitrate in Ala-
bama); Boston Telecommc’ns Group, Inc. v. Deloitte Touche Tohmatsu, 278 F.Supp.2d 1041, 1049 (N.D. Cal. 2003)
(ordering parties to arbitrate in Canada); Clarendon Nat’l Ins. Co. v. Lan, 152 F.Supp.2d 506, 524 (S.D.N.Y.
1362
U.S. courts have also held that they have the authority both to compel arbitration while stay-
ing (rather than dismissing) pending litigation of claims that are subject to arbitration.76
The grant of an affirmative order compelling arbitration is (again, correctly) characterized
by U.S. courts as a matter of specific performance of the parties’ agreement to arbitrate.77 Some
commentators have remarked that “specific performance is … not an appropriate remedy” for
breach of an arbitration agreement and that “it is not practical to force a party to take part in
arbitration proceedings.”78 That observation is not correct.
It is, in fact, eminently practical in many cases to direct parties to take part in arbitration
proceedings: that is the most important point of arbitration agreements, and orders to compel
a party to arbitrate merely crystallize such agreements and enhance their enforcement mech-
anisms, as with orders requiring specific performance of other contractual obligations. More-
over, the experience with orders to compel arbitration in the United States is that they are, in
practice, of real efficacy in ensuring compliance with arbitration agreements. This results from
the existence of contempt of court sanctions for failure to comply with such orders.79 The
2001) (ordering parties to arbitrate in New York); Hart Enters. Int’l, Inc. v. Anhui Provincial Imp. & Exp. Corp.,
888 F.Supp. 587, 591 (S.D.N.Y. 1995) (ordering parties to arbitrate in China); Evans & Sutherland Computer
Corp. v. Thomson Training & Simulation, 1994 U.S. Dist. LEXIS 15496, at *19 (S.D.N.Y.) (ordering parties to
arbitrate in New York); Filanto SpA v. Chilewich Int’l Corp., 789 F.Supp. 1229, 1241 (S.D.N.Y. 1992) (ordering
parties to arbitrate in Russia); Star-Kist Foods, Inc. v. Diakan Hope, SA, 423 F.Supp. 1220, 1223 (C.D. Cal. 1976)
(ordering parties to arbitrate in England).
As discussed below, the power of U.S. courts to order a party to arbitrate outside the United States de-
pends on whether the New York (or Inter-American) Convention applies. If not, then a number of U.S. courts
have held that the domestic FAA does not permit a U.S. district court to compel arbitration outside its district
(and, therefore, outside the United States). U.S. FAA, 9 U.S.C. §4. See §14.08[B][1]. See also Jain v. de Mere, 51
F.3d 686, 690 (7th Cir. 1995); Bauhinia Corp. v. China Nat’l Mach. & Equip. Imp. & Exp. Corp., 819 F.2d 247,
250 (9th Cir. 1987); Energy Transp. Ltd v. MV San Sebastian, 348 F.Supp.2d 186, 200 (S.D.N.Y. 2004); Tolaram
Fibers, Inc. v. Deutsche Eng’g Der Voest-Alpine Industrieanlagenbau GmbH, 1991 U.S. Dist. LEXIS 3565, at *5-6
(M.D.N.C.); Capitol Converting Co. v. Curioni, 1989 WL 152832 (N.D. Ill.); Oil Basins, Ltd v. Broken Hill Pro-
prietary Co., 613 F.Supp. 483, 488 (S.D.N.Y. 1985). See also Smith, Quintanilla & Hines, Enforcing Agreements
to Arbitrate, in L. Shore et al. (eds.), International Arbitration in the United States 189, 201 (2017) (“As befits a
provision concerned with international arbitration agreements, the power conferred by §206 is broader than
that granted under §4 of the FAA, which permits a court to order arbitration only ‘within the district in which
the petition for an order directing such arbitration is filed’”).
76 See, e.g., Tierra Verde Escape, LLC v. Brittingham Group, LLC, 2017 WL 3699554 (W.D. Mich.) (com-
pelling arbitration in Hong Kong under New York Convention); Dahir v. Royal Caribbean Cruises, Ltd, 275
F.Supp.3d 826 (S.D. Tex. 2017) (compelling arbitration under New York Convention).
77 See, e.g., Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967); Commercial Metals
Co. v. Balfour, Guthrie & Co., 577 F.2d. 264 (5th Cir. 1978); Nat’l R.R. Passenger Corp. v. Mo. R.R. Co., 501 F.2d
423, 425-26 (8th Cir. 1974) (“Congress provided in 9 U.S.C. §4 an abbreviated procedure for obtaining spe-
cific enforcement of arbitration agreements”); Spear v. Cal. State Auto Ass’n, 831 P.2d 821, 824 (Cal. 1992) (an
application to compel arbitration “is in essence a suit in equity to compel specific performance of a contract”);
Crawford v. Feldman, 604 N.Y.S.2d 585 (N.Y. App. Div. 1993); State of W. Va. ex rel. Ranger Fuel Corp. v. Lilly, 267
S.E.2d 435 (W. Va. 1980).
78 J. Lew, L. Mistelis & S. Kröll, Comparative International Commercial Arbitration ¶7-84 (2003).
79 See, e.g., InterGen NV v. Grina, 344 F.3d 134, 142 (1st Cir. 2003) (court may enforce order compelling
arbitration by holding recalcitrant party in contempt); Freaner v. Valle, 966 F.Supp.2d 1068, 1074 (S.D. Cal.
2013) (order to show cause for violation of order compelling arbitration); U.S. Titan, Inc. v. Guangzhou Zhen
Hua Shipping Co., 2003 U.S. Dist. LEXIS 25536 (S.D.N.Y.); Lifescan, Inc. v. Premier Diabetic Serv., 2001 U.S.
Dist. LEXIS 7117 (N.D. Cal.). See also Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts’ Use
of Antisuit Injunctions Against State Courts, 147 U. Pa. L. Rev. 91, 177 (1998) (“Once the federal court has issued
an order compelling arbitration, parties would risk sanctions such as contempt of court by refusing to follow
1363
availability of such enforcement mechanisms can be especially important in the international

context, where courts in some countries may not reliably give effect to the negative effects of
arbitration agreements, thus making orders enforcing the positive obligation of an arbitration
agreement significantly more important than in purely domestic contexts.80
Nonetheless, ordering arbitration in a foreign arbitral seat arguably creates the risk of ju-
dicial intrusion in the arbitral process or of conflicts between the court’s order and the laws of
the seat. For example, arbitration might be compelled in a foreign seat pursuant to an agree-
ment specifying procedures that violate the arbitral seat’s law.81
Moreover, in most international arbitrations, orders compelling arbitration could poten-
tially be issued by the courts of several nations, creating the risk of conflicting or inconsistent
orders. Inconsistent obligations would be an even greater risk if national courts purported in
such orders to select an arbitral seat,82 to appoint or remove arbitrators in a foreign arbitra-
tion,83 or to specify the arbitral rules, procedures, or language.84 These possibilities would also
conflict with one of the principal objectives of international arbitration, being to minimize the
role of national courts in dispute resolution (particularly the role of national courts outside
the seat).85 Given these potential conflicts, it would arguably be preferable for national courts
outside the seat simply to stay litigation on the merits of an arbitrable dispute and let arbitra-
tion take its course (whether in contested proceedings or in a default scenario), rather than to
affirmatively compel arbitration.
Although there is force to this observation, it ultimately misses the essential point. The
decisive point is that an order compelling arbitration need not – and, in virtually all cases,
should not – specify the applicable rules or other procedural aspects of a foreign arbitration.86
In most instances, it violates the competence-competence doctrine,87 prohibitions against
judicial interference in the arbitral process88 and the primary supervisory competence of the
courts of the arbitral seat,89 for foreign courts to address such procedural issues. As discussed
elsewhere, there is virtually never any justification for making such orders.90
Similarly, as discussed below, the scope of a party’s positive obligation to submit disputes
to arbitration is defined by the scope of its arbitration agreement.91 A party is obligated to
arbitrate only those disputes which it has agreed to arbitrate, not others; conversely, an arbitral
tribunal only has jurisdiction over those disputes which the parties have submitted to it, not
others.92
the order”).
80 This is consistent with early English common law authority, which was the source of the general prohi-
bition against injunctions ordering a party to arbitrate. See §8.02[C]; Pena Copper Mines Ltd v. Rio Tinto Co.
[1911-13] All ER 209, 214 (English Ct. App.).
81 See, e.g., Rhone Mediterranee v. Achille Lauro, 712 F.2d 50 (3d Cir. 1983) (arbitration before two arbitrators
alleged to violate Italian law).
82 As discussed below, this is not a merely hypothetical risk. See §14.08[B].
83 This is also not only a hypothetical possibility. See §12.06[D].
84 See §15.06.
85 See §§1.02[B][1] & [6]; §15.02; §15.06.
86 The nature of these limitations on national court authority is discussed in detail below. See §15.06.
87 See §7.02.
88 See §15.06.
89 See §10.03[D]; §11.04[C][1].
90 See §15.06.
91 See §§9.02[A]-[B].
92 See §§9.02[A]-[B].
1364
As discussed above, however, under most national laws, an arbitral tribunal’s jurisdiction
presumptively includes competence-competence to decide disputes regarding the tribunal’s
own jurisdiction, particularly where interpretation of the scope of the arbitration clause is
concerned (generally subject to subsequent judicial review),93 and procedural authority to
specify the arbitral procedures.94 Accordingly, where an order compelling arbitration is issued,
it ordinarily should not address issues of either jurisdiction or arbitral procedure, because do-
ing so would intrude on the arbitral tribunal’s competence.95 Rather, a court should merely
compel arbitration in accordance with the parties’ arbitration agreement without defining the
scope or procedural terms of that agreement (which are for arbitral determination in the first
instance).
Given these qualifications, the real issue is whether or not a national court order simply
directing a party to arbitrate in accordance with its arbitration agreement, as interpreted and
applied by the arbitral tribunal, is desirable and appropriate – which it usually is, particularly
where a local arbitral seat is involved. That is for the simple reason that such an order enhances
compliance with agreements to arbitrate and gives better effect to the parties’ positive obli-
gations under such agreements.96 And, where the judicial order does no more than require
arbitration in accordance with an arbitration agreement, without purporting to intrude into
the arbitral process, it causes little or no harm, again particularly where a local seat is involved.
Nonetheless, as already noted, most states do not presently provide for specific perfor-
mance of the positive obligations of arbitration agreements. Instead, the only real mechanism
for enforcing such obligations is an indirect one: this enforcement mechanism takes the
form of authorizing a kind of self-help, whereby the non-defaulting party may unilaterally
commence and proceed with the arbitration without its counter-party’s participation. Thus,
under most national laws (and institutional rules), a party is permitted to proceed with an
arbitration, even if its counter-party defaults by failing to appoint an arbitrator and otherwise
refusing to participate.97 In these circumstances, as discussed below, some national laws either
permit the non-defaulting party to nominate the defaulting party’s co-arbitrator,98 to desig-
nate the non-defaulting party’s co-arbitrator to serve as sole arbitrator,99 or to apply to national
courts for judicial appointment of an arbitrator,100 as well as unilaterally to pay the arbitrators’
fees (subject to reallocation in the arbitrators’ final award).101 Accordingly, when a party fails to
participate in an arbitration, its counter-party is generally able to proceed unilaterally to con-
stitute a tribunal and obtain a default award – which in turn provides a substantial incentive
for the counter-party’s participation in the arbitration.102
93 See §7.03[A][2][c]; §7.03[E][5][d]; §7.03[I][3].

94 See §15.03.
95 See §7.03[I][3]; §9.06[A]. As discussed above, even if the parties’ arbitration agreement does not grant
the arbitrators authority to definitively decide disputes regarding the scope of the arbitration clause, this issue
is intertwined with interpretation of the underlying contract (see §9.05[C]; §9.02[E]) and should therefore
generally be left for initial decision by the arbitral tribunal.
96 See §8.02[C].
97 See §15.08[EE].
98 See §12.03[C][2].
99 See §12.03[C][3][a]; English Arbitration Act, 1996, §17. See also Veeder, Laws and Court Decisions in
Common Law Countries and the UNCITRAL Model Law, in A. van den Berg (ed.), Preventing Delay and Disrup-
tion of Arbitration 169, 170-71 (1991).
100 See §12.03[C][3][b]; French Code of Civil Procedure, Art. 1451(3); Portuguese Law on Voluntary Ar-
bitration, Art. 10(4); Spanish Arbitration Act, Art. 15(2)(b).
101 See §§15.08[K] & [II].
102 As discussed below, default awards are in principle enforceable under most international and national
1365
Nonetheless, affirmative compliance with agreements to arbitrate is much preferable to a

default proceeding. Although tolerated, default proceedings lack the benefits of the adversary
process and are distinctly unsatisfactory procedures, they are necessary evils, rather than de-
sirable solutions. Much preferable is actual compliance with the arbitration agreement, which
is made more likely by the availability of judicial orders compelling arbitration in accordance
with the parties’ agreement.
[D] Choice of Law Governing Positive Obligation to Arbitrate

There is little authority on the law applicable to the parties’ positive obligation to arbitrate
pursuant to their arbitration agreement. In principle, the existence and scope of such an ob-
ligation would be governed by the law applicable to the substantive validity of the agreement
to arbitrate.103 As discussed below, however, the remedies available judicially to enforce such
positive obligation to arbitrate will generally be governed by the law of the judicial enforce-
ment forum.104
§8.03 NEGATIVE LEGAL EFFECTS OF INTERNATIONAL

ARBITRATION AGREEMENTS: OBLIGATION NOT TO
LITIGATE ARBITRABLE DISPUTES
An international arbitration agreement also has negative effects, which are often the mir-
ror-image of its positive effects. That is, with regard to virtually all of the disputes that a party
is obligated positively to resolve by arbitration, a comparable negative obligation exists for-
bidding litigation of such matters.105 As discussed below, this obligation is set forth in and
enforced by international arbitration conventions and national arbitration legislation. In addi-
tion, in some circumstances, the parties’ negative obligations under an arbitration agreement
can extend more broadly, to preclude conduct that obstructs or interferes with the arbitral
process or aggravates the parties’ dispute.
[A] Sources of Negative Obligation Not to Litigate Arbitrable

Disputes
As discussed above, international arbitration conventions and most national arbitration leg-
islation focus on the negative effects of the arbitration agreement (i.e., forbidding litigation of
arbitrable disputes in national courts), rather than the agreement’s positive effects. Both the
New York Convention and most national arbitration statutes expressly recognize the negative
effects of arbitration agreements and make provision for enforcing those negative obligations.
More fundamentally, the negative obligations imposed by an agreement to arbitrate have
their source in the parties’ agreement. Like the positive obligations of an arbitration agree-
ment, courts are required to recognize and enforce these negative obligations under both the
New York Convention and most contemporary arbitration legislation. Importantly, it is the
parties’ arbitration agreement that is both the source of those negative obligations and the
ultimate touchstone for defining the content and scope of those obligations.
arbitration regimes. See §15.08[EE]; §23.01[F]; §26.05[C][3][g].

103 See §§4.04 et seq.
104 See §8.02[C]. See also §8.03[A]; §§8.03[C][1]-[2] (negative obligations).
105 There are very limited exceptions to this principle, involving provisional measures and jurisdictional is-
sues, where there is the possibility of concurrent jurisdiction in both national courts and an arbitral proceeding.
See §7.03[I][3]; §17.02[E]; §17.04[C][4]; §§27.03[B]-[D].
1366
[1] Negative Obligation Not to Litigate Arbitrable Disputes Under International

Arbitration Conventions
As discussed above, Articles II(1) and II(3) of the New York Convention provide for Con-
tracting States to “recognize” agreements to arbitrate and to “refer the parties to arbitration.”106
Where the parties have agreed to submit disputes to arbitration, these provisions recognize
and enforce the negative effects of that agreement, by requiring either the stay (i.e., suspen-
sion) of national court litigation of arbitrable disputes or the dismissal of such litigation.107 As
discussed below, any other action by a national court, dealing with the substance of an arbi-
trable dispute, is contrary to the obligation to “refer the parties to arbitration.”108 As with the
positive obligations of agreements to arbitrate, the ultimate source of the negative obligation
not to litigate an arbitrable dispute is the parties’ arbitration agreement itself – which is then
recognized and given effect by Article II of the Convention.
[2] Negative Obligation Not to Litigate Arbitrable Disputes Under National

Arbitration Legislation
Most developed national arbitration legislation gives effect to the negative obligations im-
posed by international arbitration agreements in ways paralleling those under the New York
Convention. Article 8(1) of the Model Law is representative, requiring that courts “refer the
parties to arbitration.”109 Article 8(1) impliedly precludes a national court from entertaining
106 See §2.01[A][1]; §8.02[A][1]; New York Convention, Arts. II(1), (3).
107 See §§8.03[C][1]-[2]; §27.03[D].
108 See §8.03[B][3]; §15.06; McDonnel Group, LLC v. Great Lakes Ins. SE, UK Branch, 923 F.3d 427 (5th Cir.
2019) (“When the Convention is applicable, courts of signatory states must ‘at the request of one of the parties,
refer the parties to arbitration, unless it finds that the … agreement is null and void, inoperative or incapable
of being performed’”); Answers in Genesis of Ky., Inc. v. Creation Ministries, 556 F.3d 459, 469 (6th Cir. 2009)
(“The language of [Article II(3)] and its statutory incorporation provide for no exceptions. When any party
seeks arbitration, if the agreement falls within the [New York Convention], we must compel the arbitration
unless the agreement is ‘null and void, inoperative, or incapable of being performed.’”); InterGen NV v. Grina,
344 F.3d 134, 141 (1st Cir. 2003); I.T.A.D. Assocs., Inc. v. Podar Bros., 636 F.2d 75, 77 (4th Cir. 1981) (Article
II(3) “clearly mandates the referral of … dispute to arbitration unless one of the enumerated exceptions is
applicable”); McCreary Tire & Rubber Co. v. CEAT SpA, 501 F.2d 1032, 1037 (3d Cir. 1974) (“There is nothing
discretionary about Article II(3) of the Convention”); Soojay v. WorldVentures Mktg, LLC, 2019 WL 2246208
(E.D. Tex.) (“the Convention requires the district court to compel arbitration ‘unless it finds that the said agree-
ment is null and void, inoperative or incapable of being performed’”) (emphasis in original); Arabian Homes for
Foreign Trade v. M/V Grain Trader, 1996 WL 54412, at *1-2 (E.D. La.) (court must grant stay where New York
Convention applies); Lonrho Ltd v. Shell Petroleum Co., IV Y.B. Comm. Arb. 320, 321 (Ch) (English High Ct.
1978) (1979) (“The effect of §1 [of the English Arbitration Act, 1975, implementing Article II(3)] is to deprive
the court of any discretion whether a claim within a non-domestic arbitration agreement should be arbitrated
or litigated. … The Section is mandatory.”); Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA 57, ¶42
(Singapore Ct. App.) (“When Art II(3) of the New York Convention was formulated in the 1950s, it sought
principally to achieve the limited goal of preventing Contracting States from refusing to recognise the validity
of arbitration agreements”); Hotels.com (U.S.) v. Zuz Tourism Ltd, XXXI Y.B. Comm. Arb. 791, 794-95 (Israeli
S.Ct. 2005) (2006) (“Article II(3) of the Convention states in mandatory language that the court ‘shall …
refer’ the parties to arbitration, unless one of the exceptions listed in the section is present. It appears that the
manner in which both provisions were drafted leads to a single conclusion: that if one of the three exceptions
mentioned in Article II(3) does not appear, the court is as a rule required to order a stay of the proceedings
…”); A. Samuels, Jurisdictional Problems in International Commercial Arbitration 195 (1989) (“Where the New
York Convention applies, it is clear that the court has no discretion as to whether to stay proceedings brought
in breach of a valid arbitral agreement”).
109 UNCITRAL Model Law, Art. 8(1).
1367
a dispute on the merits if the parties have agreed to arbitrate it, and instead requires that the
parties be referred to arbitration. As with Article II(3) of the Convention, Article 8 applies to
agreements providing for arbitration seated abroad, as well as locally.110
Other national arbitration legislation is similar.111 In the words of the UK Supreme Court,
applying the English Arbitration Act, 1996:
“An agreement to arbitrate disputes has positive and negative aspects. A party seeking
relief within the scope of the arbitration agreement undertakes to do so in arbitration
in whatever forum is prescribed. The (often silent) concomitant is that neither party
will seek such relief in any other forum. If the other forum is the English court, the
remedy for the party aggrieved is to apply for a stay under section 9 of the Arbitration
Act 1996.”112
This negative aspect of an arbitration agreement is as “fundamental” as positive aspect of the
agreement.113
[B] Content of Negative Obligation Not to Litigate Arbitrable

Disputes
The content of the negative obligations imposed by an agreement to arbitrate is dealt with
under the Convention and national arbitration legislation by giving effect to the parties’ agree-
ment – that is, by requiring recognition and enforcement of that agreement. Like the approach
to the positive duty to arbitrate, this treatment of the negative obligations of an agreement to
arbitrate is consistent with the contractual character of the arbitral process.
The most fundamental negative obligation of an arbitration agreement is the commit-
ment not to litigate disputes that are subject to arbitration; that obligation is paralleled by the
(obvious) exclusivity of agreements to arbitrate, which expressly or impliedly require that all
arbitrable disputes be resolved in, and only in, arbitral proceedings. The scope of this aspect of
the negative obligation not to litigate arbitrable disputes is generally the mirror image of the
scope of the positive obligation to arbitration: put simply, disputes which must be arbitrated,
may not be litigated.114 As a South African decision concluded,
“[n]ot only do parties to such an agreement undertake to seek relief in arbitration in
whatever forum the agreement prescribes, the negative (often silent) aspect of the
110 See §2.04[B].

111 See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (U.S. S.Ct. 1985) (terms of §3 “leave no place for
the exercise of discretion by a district court, but instead … mandate that district courts shall direct the parties
to proceed to arbitration on issues as to which an arbitration agreement has been signed”); Asghar v. Legal
Servs. Comm’n [2004] EWHC 1803 (Ch) (English High Ct.) (investigation by Legal Services Commission
stayed in respect of all matters which under contract should be referred to arbitration); Kellys of Fantane Ltd v.
Bowen Constr. Ltd, [2017] IEHC 357, ¶22 (Dublin High Ct.) (“If there is an arbitration clause and the dispute is
within the scope of the arbitration agreement and there is no finding that the agreement is null and void, inop-
erative, or incapable of being performed then by virtue of Article 8 of the Model Law, a stay must be granted”);
§§1.03[B][1][b] et seq.
112 Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC
35, ¶1 (U.K. S.Ct.).
113 Id. at ¶21.
114 See, e.g., Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP [2013]
UKSC 35, ¶21 (U.K. S.Ct.); HC Trading Malta v. Tradeland Commodities SL [2016] EWHC 1279, ¶25 (Comm)
(English High Ct.) (“the rights conferred by an arbitration agreement included the separate and negative right
not to be sued elsewhere i.e. otherwise than pursuant to the agreement”); Vedanta Res. Holdings Ltd v. ZCCM
Inv. Holdings plc, [2019] ZAGPJHC 250 (S. Gauteng High Ct.).
1368
agreement means that the parties undertake the concomitant (negative) obligation
not to seek relief in any other forum.”115
In general, it is clear that the negative effects of the arbitration agreement apply regardless
whether or not an arbitration has been commenced.116
There are circumstances, in some legal systems, where the negative effects of an arbitration
agreement extend more broadly than their positive effects. This is true in particular with respect
to jurisdictional issues, where in some states, national courts will not resolve jurisdictional
disputes that are being considered by the arbitral tribunal. As discussed above, however, these
so-called negative effects of the competence-competence of the arbitral tribunal are ordinarily
the consequence of national arbitration legislation (or international arbitration conventions),
which allocate jurisdictional authority to the arbitral tribunal and deny it to national courts.117
[1] Obligation Not to Litigate Arbitrable Disputes

Article 8(1) of the UNCITRAL Model Law is representative of national arbitration legisla-
tion’s treatment of the negative effects of an arbitration agreement. As discussed above, Article
8(1) imposes an obligation identical to that in Article II of the New York Convention, requir-
ing that courts “refer the parties to arbitration.”118 This provision impliedly precludes a national
court from entertaining a dispute on the merits, if the parties have agreed to arbitrate it, and
instead requires that the parties be referred to arbitration.
National courts have consistently held that the obligation imposed by Article 8(1) is man-
datory, and not a matter of discretion.119 A Canadian court concluded that “[t]he wording of
115 Vedanta Res. Holdings Ltd v. ZCCM Inv. Holdings PLC, [2019] ZAGPJHC 250 (S. Gauteng High Ct.).
35, ¶22 (U.K. S.Ct.) (“case-law also contains no support for JSC’s argument that the negative aspect of an
arbitration agreement is enforceable only when an arbitration is on foot or proposed”); HC Trading Malta v.
Tradeland Commodities SL [2016] EWHC 1279, ¶25 (Comm) (English High Ct.) (“not a pre-requisite that an
arbitration had already been started or was imminent”).
117 See §7.02[E].
118 See §8.02[A]; UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on
International Commercial Arbitration as amended in 2006 ¶21 (2008) (“Modelled on article II(3) of the New
York Convention, article 8(1) of the Model Law places any court under an obligation to refer the parties to
arbitration if the court is seized with a claim on the same subject-matter unless it finds that the arbitration
agreement is null and void, inoperative or incapable of being performed”).
119 See, e.g., Dell Computer Corp. v. Union des Consommateurs, [2007] 2 SCR 801, ¶149 (Canadian S.Ct.);
Nanisivik Mines Ltd v. F.C.R.S. Shipping Ltd, [1994] 2 FC 662, ¶8 (Canadian Fed. Ct. App.) (“In both its ordi-
nary meaning and in light of the object and purpose of the Act, ‘shall’ clearly means ‘must’ not ‘may’”); Mira-
michi Pulp & Paper Inc. v. Canadian Pac. Bulk Ship Servs. Ltd, [1992] 58 FTR 81, ¶16 (Canadian Fed. Ct.); BC
Navigation SA v. Canpotex Shipping Servs. Ltd, [1987] 16 FTR 79, ¶4 (Canadian Fed. Ct.) (“[Article 8] imposes
an imperative duty upon the Court to refer to the parties to arbitration …”); City of Prince George v. A.L. Sims
& Sons Ltd, [1995] WWR 503, ¶58 (B.C. Ct. App.); Kaverit Steel & Crane Ltd v. Kone Corp., XIX Y.B. Comm.
Arb. 643, 645 (Alberta Ct. App. 1992) (1994) (“I am of the view that the statute commands that what may go
to arbitration shall go. No convenience test limits references.”); PetroKazakhstan Inc. v. Lukoil Overseas Kumkol
BV, [2005] ABQB 789, ¶56 (Alberta Q.B.) (“[C]ourts in this jurisdiction are required not to intervene in mat-
ters governed by arbitration: … Article 8(1). … Accordingly, it would be inappropriate for this Court to make
any determination of [respondent’s] claims of breach of contract.”); Cangene Corp. v. Octapharma AG, [2000]
WWR 606, ¶13 (Manitoba Q.B.); Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA 57, ¶27 (Sin-
gapore Ct. App.); Coop Int’l Pte Ltd v. Ebel SA, [1998] SGHC 425 (Singapore High Ct.) (“Art. 8 of the Model
Law requires a mandatory stay of proceedings unless the court is satisfied that the arbitration agreement is null
and void, inoperative or incapable of being performed”); New Sound Indus. Ltd v. Meliga Ltd, [2005] HKCA 7
(H.K. Ct. App.); Daily Win Eng’g Ltd v. Owners of Greenwood Terrace, XXX Y.B. Comm. Arb. 168 (H.K. Ct. First
1369
article 8 is mandatory,”120 while a Singaporean court held that “Article 8 of the Model Law
requires a mandatory stay of proceedings unless the court is satisfied that the arbitration
agreement is null and void, inoperative or incapable of being performed. I think this position
is correct.”121
Commentary is to the same effect: “Art. 8(1) is a mandatory provision: when the
conditions for its application are fulfilled the court has no discretion, but must refer the
parties to arbitration.”122 As with Article II(3) of the New York Convention, Article 8 ap-
plies to international arbitration agreements providing for arbitration seated abroad,123
Inst. 2001) (2005); F & D Bldg Servs. Eng’g Co. v. Chevalier Ltd, XXX Y.B. Comm. Arb. 164 (H.K. Ct. First Inst.
2001) (2005); Paladin Agric. Ltd v. Excelsior Hotel Ltd, [2001] 2 HKC 215 (H.K. Ct. First Inst.) (“In conclusion
… at each turn the court is faced with the mandatory nature of Article 8(1)”); Kellys of Fantane Ltd v. Bowen
Constr. Ltd, [2017] IEHC 357, ¶22 (Dublin High Ct.).
120 Dalimpex Ltd v. Janicki, [2003] 228 DLR4th 179, ¶20 (Ontario Ct. App.). See also Dell Computer Corp.
v. Union des Consommateurs, [2007] 2 SCR 801, ¶149 (Canadian S.Ct.) (“[Article] 940.1 C.C.P. seems clear:
if the parties have an agreement to arbitrate on the matter of the dispute, on the application of either of the
parties, the court shall refer the parties to arbitration, unless the case has been inscribed on the roll or the court
finds the agreement to be null. It is well established that, by using the term “shall”, the legislator has indicated
that the court has no discretion to refuse, on the application of either of the parties, to refer the case to arbitra-
tion when the appropriate conditions are met.”) (emphasis in original).
121 Coop Int’l Pte Ltd v. Ebel SA, XXVI Y.B. Comm. Arb. 832, 839 (Singapore High Ct. 1998) (2001). See
also Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA 57, ¶27 (Singapore Ct. App.) (“Specifically, un-
der §6 of the [Singapore International Arbitration Act], the court must stay court proceedings relating to ‘any
matter’ that is covered by an arbitration agreement upon an application for a stay by a party to that agreement.
The only exceptions are where the court is satisfied that the arbitration agreement is ‘null and void’, ‘inoperative’
or ‘incapable of being performed’: §6(2) of the [Act]. This regime is substantially similar to that found in Art
8(1) of the Model Law, but with some differences in phraseology.”).
122 See A. Broches, Commentary on the UNCITRAL Model Law on International Commercial Arbitration Art.
8, ¶3 (1990). See also Bantekas, Arbitration Agreement and Substantive Claim Before Court, in I. Bantekas et al.
(eds.), UNCITRAL Model Law on International Commercial Arbitration: A Commentary 145 (2020); Beraudo,
Case Law on Articles 5, 8, and 16 of the UNCITRAL Model Arbitration Law, 23 J. Int’l Arb. 101 (2006); P. Bind-
er, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions 146-47 (4th ed.
2019); I. Dore, The UNCITRAL Framework for Arbitration in Contemporary Perspective 106 (1993); H. Holtz-
mann & J. Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative
History and Commentary 302 (1989); P. Sanders, The Work of UNCITRAL on Arbitration and Conciliation 73
(2d ed. 2004) (“In the case the validity [of the arbitration agreement] is not contested, the court will refer the
parties to arbitration”).
123 See §2.03[C][2][a]; §2.04[B]; UNCITRAL Model Law, Art. 1(2); VC Rice Intertrade Co. Ltd v. Asian
Mineral Res. Pte Ltd, [2017] SGHC 32 (Singapore High Ct.); Coop Int’l Pte Ltd v. Ebel SA, XXVI Y.B. Comm.
Arb. 832, 847 (Singapore High Ct. 1998) (2001) (Article 8 “is not restricted to agreements providing for arbi-
tration in that State and, thus, helps to give universal recognition and effect to the commercial arbitration agree-
ments”); UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 33 (2012)
(“Pursuant to article 1(2) of the Model Law, the fact that the place of arbitration is located in a foreign jurisdic-
tion has no bearing on the applicability of article 8”); UNCITRAL, Explanatory Note by the UNCITRAL Sec-
retariat on the 1985 Model Law on International Commercial Arbitration as Amended in 2006 ¶21 (2008) (“since
article 8 is not limited in scope to agreements providing for arbitration to take place in the enacting State, it
promotes the universal recognition and effect of international commercial arbitration agreements”). See also
Nanisivik Mines Ltd v. Canarctic Shipping Co., [1994] 113 DLR4th 536, ¶8 (Canadian Fed. Ct. App.) (court had
“no discretion in the circumstances but to refer the claim” to arbitration in London); Dalimpex Ltd v. Janicki,
[2003] 228 DLR4th 179, ¶¶20-21 (Ontario Ct. App.) (Article 8’s requirements “mandatory” where arbitration
was to be held in Poland); D.G. Jewelry Inc. v. Cyberdiam Canada Ltd, [2002] 21 CPC5th 174, ¶¶28-29 (Ontario
Super. Ct.) (staying claims so that parties could arbitrate in, among other places, Toronto); China Merchants
Heavy Indus. Co. v. JGC Corp., [2001] 3 HKC 580, 585 (H.K. Ct. App.) (affirming decision to stay proceedings
1370
as well as locally.124
Other leading national arbitration regimes are similar. As one court reasoned, under the
FAA in the United States:
“Contracts to arbitrate are not to be avoided by allowing one party to ignore the con-
tract and resort to the courts. Such a course could lead to prolonged litigation, one of
the very risks the parties, by contracting for arbitration, sought to eliminate.”125
Courts in other jurisdictions have adopted the same rationale.126
Importantly, the predicate of this approach is that parties to arbitration agreements are
themselves mandatorily prohibited from litigating arbitrable disputes.127 Efforts to do so, by
pursuing litigation of arbitrable disputes, are per se violations of a party’s negative obligation
not to litigate disputes that are subject to arbitration. Just as the obligations of national courts,
under the Convention and Model Law are mandatory, so the obligations of parties under their
agreements to arbitrate are mandatory.
Some commentators have suggested that the “main effect of an arbitration agreement is
the exclusion of the competence of the courts in favour of arbitration.”128 That reasoning is
flawed. It is inaccurate to characterize the “main effect” or “principal” purpose of an arbitra-
tion agreement as its negative consequences. The better characterization is that the positive
and negative effects of the arbitration agreement are co-equal and complementary: neither is
pursuant to Hong Kong version of Article 8 and refer dispute to arbitration in Japan); Tai Hing Cotton Mill Ltd v.
Glencore Grain Rotterdam BV, [1995] HKEC 424 (H.K. Ct. App.) (staying proceedings in Hong Kong in favor
of arbitration in Liverpool); Comandate Marine Corp. v. Pan Australia Shipping Pty Ltd, [2006] FCAFC 192
(Australian Fed. Ct.) (referring parties to arbitration in London); Danone Asia Pac. Holdings Pte Ltd v. Fonterra
Co-operative Group Ltd, [2014] NZHC 1681 (Auckland High Ct.) (staying proceedings in favor of arbitration
in Singapore).
124 See §2.03[B][2][a], pp. 322-46; §2.04[B]; Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA
57 (Singapore Ct. App.); Maybank Kim Eng Sec. Pte Ltd v. Lim Keng Yong, [2016] SGHC 68 (Singapore High
Ct.); New Sound Indus. Ltd v. Meliga Ltd, [2005] HKCA 7 (H.K. Ct. App.); Neo Intelligence Holdings Ltd v. Giant
Crown Indus. Ltd, [2017] HKCFI 2088 (H.K. Ct. First Inst.) (referring parties to arbitration in Hong Kong);
Aggressive Constr. Co. v. Data-Form Eng’g Ltd, [2009] HKCFI 854 (H.K. Ct. First Inst.); Pac. Crown Eng’g Ltd
v. Hyundai Eng’g & Constr. Co., [2003] 3 HKLRD 440 (H.K. Ct. First Inst.); Getwick Eng’rs Ltd v. Pilecon Eng’g
Ltd, [2002] 1020 HKCU 1 (H.K. Ct. First Inst.); Leviathan Shipping Co. v. Sky Sailing Overseas Co., [1998] 4
HKC 347, 354 (H.K. Ct. First Inst.) (referring parties to arbitration in Hong Kong); Galgalo v. Musikali Kombo,
Civil Case No. 382/2006 (Kenyan High Ct.).
125 Southland Corp. v. Keating, 465 U.S. 1, 7 (U.S. S.Ct. 1984). See also Dean Witter Reynolds, Inc. v. Byrd, 470
U.S. 213, 218 (U.S. S.Ct. 1985) (terms of §3 “leave no place for the exercise of discretion by a district court, but
instead … mandate that district courts shall direct the parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed”).
126 See, e.g., Anzen Ltd v. Hermes One Ltd [2016] UKPC 1 (U.K. Privy Council); Sodzawiczny v. Ruhan
[2018] EWHC 1908 (Comm) (English High Ct.); Asghar v. Legal Servs. Comm’n [2004] EWHC 1803 (Ch)
(English High Ct.) (investigation by Legal Services Commission stayed in respect of all matters which under
contract should be referred to arbitration); Judgment of 2 October 1931, DFT 57 I 295, 305 (Swiss Fed. Trib.)
(“negative effect [of arbitration] is the exclusion of the State courts’ jurisdiction”); Tomolugen Holdings Ltd v.
Silica Investors Ltd, [2015] SGCA 57 (Singapore Ct. App.).
127 See UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 33 (2012)
(“article 8(1) relates to the so-called ‘negative’ effect of the arbitration agreement, which prevents the parties
from commencing court actions in relation to matters falling within the scope of the agreement”).
128 A. van den Berg, The New York Arbitration Convention of 1958 152 (1981). See also G. Petrochilos, Proce-
dural Law in International Arbitration 27 (2004) (“in truth, an arbitration agreement is principally a derogation
clause (excluding the jurisdiction of all courts in the world), whereas a forum-selection clause is primarily a
prorogation clause (enlarging the jurisdiction of the designated court)”).
1371
effective or sensible without the other and both play fundamentally important roles in ensur-
ing fair, efficient resolution of the parties’ disputes.
[2] Exclusivity of Arbitration

Although arbitration clauses typically do not provide expressly that “all disputes shall be re-
solved by arbitration, to the exclusion of national courts,” this negative obligation is the undis-
puted meaning of virtually all international arbitration agreements.129 One of the fundamental
purposes of international arbitration agreements is to centralize the parties’ disputes in a single
forum for final resolution130 – an objective that would be entirely frustrated if parallel national
court proceedings involving the same disputes were permitted. Likewise, it is very difficult to
see how arbitral proceedings could accomplish their basic objective – of finally resolving the
parties’ dispute131 – if parallel litigation of the same dispute were permitted. Indeed, as dis-
cussed below, it is virtually never even argued that an arbitration agreement is “non-exclusive,”
permitting national court litigation to proceed in parallel to the arbitration.132
A party’s commencement of litigation on claims, subject to an arbitration agreement, is
therefore a breach of that agreement and, in particular, its negative obligations.133 That breach,
like other violations of contractual obligations, entitles the non-breaching party to relief,
which under contemporary international arbitration conventions and national legislation
129 Some institutional arbitration rules contain provisions indicating the exclusivity of the arbitral process.
See, e.g., 2017 ICC Rules, Art. 35(6) (“By submitting the dispute to arbitration under the Rules, the parties
undertake to carry out any award without delay and shall be deemed to have waived their right to any form
of recourse insofar as such waiver can validly be made”); 2020 LCIA Rules, Arts. 22(2), 23(5) (“By agreeing
to arbitration under the Arbitration Agreement, after the formation of the Arbitral Tribunal the parties shall
be treated as having agreed not to apply to any state court or other legal authority”); 2015 CIETAC Rules,
Art. 49(9) (“Neither party may bring a lawsuit before a court or make a request to any other organization for
revision of the award”); 2016 DIFC-LCIA Rules, Art. 23(5) (“By agreeing to arbitration under the Arbitration
Agreement, after the formation of the Arbitral Tribunal the parties shall be treated as having agreed not to apply
to any state court or other legal authority”).
130 See §1.02[B][2].
131 See §1.02[B][5]; §2.03[D].
132 See §9.04. See also Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant
LLP [2013] UKSC 35, ¶21 (U.K. S.Ct.); Pena Copper Mines Ltd v. Rio Tinto Co. [1911] All ER 209, 212 (English
Ct. App.) (arbitration agreement entails “probably an express negative, but … certainly an implied negative …
that they will not sue in a foreign court”); HC Trading Malta v. Tradeland Commodities SL [2016] EWHC 1279,
¶25 (Comm) (English High Ct.); Oppenheim v. Midnight Marine Ltd, 2010 NLCA 64, ¶¶48, 52, 54 (New-
foundland & Labrador Ct. App.) (“In England and in the European Union generally, a valid arbitration clause
in an international commercial contract is ‘… analogous to an exclusive jurisdiction clause.’ … In the circum-
stances, the only reasonable interpretation of these words [any dispute] is ‘every’ dispute. … [T]he absence
of the term ‘exclusive’ is not determinative of whether a clause is an exclusive jurisdiction clause.”) (quoting
Shashoua v. Sharma [2009] EWHC 257 (Comm) (English High Ct.); Trade Maritime Corp. v. Hellenic Mutual
War Risks Ass’n (Bermuda) Ltd [2006] EWHC 2530 (Comm) (English High Ct.)).
133 See, e.g., Gabbanelli Accordions & Imps., LLC v. Gabbanelli, 575 F.3d 693, 695 (7th Cir. 2009) (“A person
who having agreed to arbitrate instead brings a suit has broken his contract, and the breach can be pleaded as a
defense to his suit”); Apple Inc. v. BYD Co. Ltd, 2016 WL 1212638 (N.D. Cal.); In re GOE Lima, LLC, 2012 WL
4634885, at *11 (N.D. Ohio) (quoting Gabbanelli Accordions & Imps., LLC, 575 F.3d at 695); Versatile House-
wares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F.Supp.2d 230, 239 (S.D.N.Y. 2011) (“clause creates an
obligation on the parties to bring all actions falling within the clause’s scope, including this action, in the chosen
forum, and that [plaintiff] consequently breached this obligation by bringing this action in [another forum]”)
(emphasis in original); Cent. Reserve Life Ins. Co. v. Marello, 2000 WL 1474106, at *2 (E.D. Pa.) (“Filing a lawsuit
based on arbitrable claims constitutes such a breach”), aff’d, 281 F.3d 219 (3d Cir. 2001).
1372
includes specific enforcement through a stay or dismissal of the litigation, and exposes the
breaching party to contractual liability.134
Some national courts have held that Article 8(1) applies only after litigation has been ini-
tiated in national court and that no order referring a dispute to arbitration should be granted
unless a court has been “seized” of an action concerning the parties’ underlying dispute.135
There is little to support this interpretation in either the text or the purposes of the Model Law.
If a party seeks declaratory (or other) relief aimed at requiring arbitration of a dispute, there is
no reason not to apply Article 8 of the Model Law.
The obligation not to litigate disputes that are subject to arbitration is expansive and ap-
plies to all forms of litigation of the merits of the parties’ dispute. German courts have held, for
example, that the obligation not to litigate arbitrable disputes under Article 8 applies not only
to ordinary civil actions, but also to summary proceedings (Urkundenprozess).136 Other forms
of dispute resolution, including actions in administrative tribunals and other quasi-judicial
forums, would also be subject to Article II of the Convention and Article 8 of the Model Law,
provided that they involved consideration and resolution of the parties’ underlying dispute.
In contrast, applications seeking the liquidation of a company have been held not to be
“actions” for the purposes of Article 8 of the Model Law.137 Similarly, applications for provi-
sional relief or assistance in evidence-taking in aid of arbitration have been held not to consti-
tute “actions” under Article 8 (and are instead specifically permitted by Articles 9, 17 and 27 of
the Model Law).138 These types of proceedings do not involve decisions on the merits of the
parties’ underlying dispute and instead, exceptionally, seek to protect the parties’ rights so that
their dispute can be resolved in arbitral proceedings, pursuant to their arbitration agreement.
[3] Scope of Negative Obligations Under Arbitration Agreements

As already discussed, the negative effects of an arbitration agreement are often the mirror-im-
age of the positive effects of the agreement. In the words of one Swiss judicial decision: “the
principal effect of an arbitration agreement is not to exclude the jurisdiction of the State
courts, but to transfer the right of decision to an arbitral tribunal. … The negative effect, that is
the exclusion of the State courts’ jurisdiction, only constitutes a consequence of the positive effect.”139
134 See §§8.03[C][1]-[2].

135 ATM Compute GmbH v. DY 4 Sys., Inc., [1995] OJ No. 1678 (Ontario Super. Ct.); UNCITRAL, Digest
of Case Law on the Model Law on International Commercial Arbitration 34 (2012) (“Article 8 states that it applies
where a court is seized of an ‘action.’ If the court is not seized of an action, article 8 is not applicable and no
referral order may be obtained”).
136 See, e.g., Judgment of 31 May 2007, III ZR 22/06 (German Bundesgerichtshof); Judgment of 12 January
2006, III ZR 214/05 (German Bundesgerichtshof).
137 See, e.g., Re Sanpete Builders Pte Ltd, [1989] SLR 164 (Singapore High Ct.); Re S. Materials Holding Co.,
[2008] HKCFI 98 (H.K. Ct. First Inst.); Hoo Cheong Bldg Constr. Co. v. Jade Union Inv. Ltd, [2004] HKCFI 21
(H.K. Ct. First Inst.); Liu Man Wai v. Chevalier Ltd, [2002] HKCFI 399 (H.K. Ct. First Inst.); In re Mech-Power
H.K.-China Ltd, [1996] HKCFI 307 (H.K. Ct. First Inst.).
138 See §17.04[E]; Timoney Tech. Ltd v. ADI Ltd, [2007] VSC 402 (Victoria Sup. Ct.) (existence of arbi-
tration agreement did not prevent court from ruling on application seeking disclosure of documents in aid of
arbitration). See also Judgment of 19 April 2017, XLII Y.B. Comm. Arb. 469 (Gelderland Rechtbank) (2017);
N. Erk-Kubat & J. Lew (eds.), Parallel Proceedings in International Arbitration: A Comparative European Perspec-
tive 73 (2014) (“As an exception hereto, [Article II(3) of the New York Convention] does not apply to court
proceedings for interim or provisional relief and to judicial proceedings initiated in support of arbitration (such
as an application to remove an arbitrator)”).
139 Judgment of 2 October 1931, DFT 57 I 295, 305 (Swiss Fed. Trib.).
1373
Other authorities are to the same effect.140

Accordingly, insofar as an arbitral tribunal is vested with jurisdiction to hear particular
substantive disputes, then national courts must cease to exercise parallel jurisdiction to decide
such disputes (save for their statutorily-prescribed roles in supporting the arbitral process or
reviewing an award in an action to either annul it or recognize it141). Where one jurisdictional
ambit stops (e.g., the national court’s) then the other (e.g., the arbitral tribunal’s) begins.142
Nonetheless, there are circumstances – concerning jurisdictional issues – where national
law extends the negative obligations of the arbitration agreement beyond this ambit. In prin-
ciple, insofar as a tribunal possesses jurisdiction to decide disputes regarding its own juris-
diction (competence-competence), then national courts may be divested of power to decide
such disputes (save for their defined roles in reviewing the eventual arbitral award).143
Beyond this, however, many legal systems recognize even broader competence on the part
of arbitral tribunals in jurisdictional matters. Indeed, many legal systems affirmatively grant
arbitrators the authority to consider and resolve jurisdictional disputes even in the absence of
an agreement to that effect.
As discussed in detail above, national legal systems differ in their approaches to compe-
tence-competence.144 In some systems (e.g., France, India and Hong Kong), courts will defer
any decision on a tribunal’s competence to resolve jurisdictional issues, including challenges
to the existence or validity of any arbitration agreement at all, until an award has been issued
on the issue, and then decide the issue de novo.145 In other systems (e.g., United States and
England), courts will defer to a tribunal’s jurisdictional competence if the parties have agreed
to arbitrate jurisdictional issues (and then will not review the arbitrators’ jurisdictional deci-
sion), and will defer to a tribunal’s competence-competence in other circumstances depend-
ing on the nature of the jurisdictional objection and considerations of efficiency and equity.146
Although these various treatments of competence-competence differ, many of them share
the characteristic of giving effect in some circumstances to the negative obligations of a pu-
tative agreement to arbitrate even where that agreement’s existence or validity is disputed.147
140 See, e.g., InterGen NV v. Grina, 344 F.3d 134, 141 (1st Cir. 2003); Eazy Elecs. & Tech., LLC v. LG Elecs., Inc.,
226 F.Supp.3d 68 (D.P.R. 2016); Judgment of 8 August 1990, XVII Y.B. Comm. Arb. 545, 547 (Italian Corte di
Cassazione) (1992) (referring to effects of arbitration agreement: “its positive effects, i.e., referral of the dispute
to arbitrators, and its negative effects, i.e., exclusion of court jurisdiction in the Contracting States”); Judgment
of 16 October 2018, Lda, Case No. 2258/16.4T8CBR.C1.S1 (Portuguese Supremo Tribunal de Justiça). See also
Sanders, Arbitration Law in Western Europe: A Comparative Survey, in M. Domke (ed.), International Trade Arbi-
tration: A Road to World-Wide Cooperation 139-40 (1958) (“The existence of an arbitration agreement deprives
the Courts of their jurisdiction. The judge becomes incompetent when the defendant invokes an arbitration
agreement.”).
141 See §27.02[B][3][b].
142 As noted above, there is an exception to this principle in the case of provisional measures, as to which
concurrent jurisdiction exists. See §8.03; §17.02[E]; §17.04[C][4].
143 See §7.03[I][3]; §8.03.
144 See §§7.03 et seq.
145 See §§7.03[B].
146 See §§7.03[E]-[F]. Alternatively, Article VI(3) of the European Convention provides a variation of this
approach, requiring general deference to the arbitrators’ jurisdiction, subject to an exception permitting dis-
cretionary interlocutory judicial consideration of jurisdictional issues. European Convention, Art. VI(3). See
§7.02[A][2].
147 Where an admittedly valid agreement to arbitrate jurisdictional disputes exists (for example, regarding
the scope of the arbitration agreement), different considerations apply. As discussed below (see §8.04[B]),
courts should not be free to engage in judicial consideration of jurisdictional issues where the parties have
1374
As discussed above, this cannot properly be regarded as enforcement of one of the negative
obligations imposed by an arbitration agreement, but is instead the result of external, statuto-
rily-prescribed allocations of jurisdictional competence.148
Although the issue is seldom addressed, the scope of the negative obligations arising from
an agreement to arbitrate can be broader than the positive obligations in other respects. The
negative obligations imposed by an arbitration agreement include obligations not to obstruct,
undermine, or circumvent the arbitral process.149 Thus, properly analyzed, an arbitration
agreement may preclude a party from commencing litigation against non-signatory officers,
directors, or employees of a counter-party concerning disputes which are subject to arbitra-
tion;150 or from pursuing litigation against corporate affiliates of a counter-party concerning
such disputes during the arbitral process;151 or from initiating criminal, administrative, or simi-
lar proceedings against a counter-party or its officers, directors, or corporate affiliates concern-
ing such disputes.152 In some instances, these conclusions are treated (in part) as extensions of
the positive obligations to arbitrate,153 or as prohibitions against measures that “aggravate the
agreed to arbitrate such matters (thus giving effect to the negative obligations of the agreement to arbitrate
matters of jurisdiction); in the absence of such an agreement, courts have discretion not to engage in judicial
consideration of such issues, even though the courts would in principle be competent to do so, where reasons
of efficiency and fairness argue for an arbitral determination.
148 See §3.03[A]; §7.02[F]. Most clearly, the French rule requiring judicial referral of all jurisdictional objec-
tions to arbitration, after arbitral proceedings have commenced, reflects a legislative preference regarding the
proper allocation of initial competence over, and the best forum for initial consideration of, such objections. See
§7.03[B].
149 These obligations would forbid parties from making public statements about the dispute in an inflam-
matory (or unbalanced) manner that creates pressure on participants in the arbitration process. See Biwater
Gauff (Tanzania) Ltd v. Tanzania, Procedural Order No. 3 in ICSID Case No. ARB/05/22 of 29 September 2006,
¶¶135-36 (“It is self-evident that the prosecution of a dispute in the media or in other public fora, or the uneven
reporting and disclosure of documents or other parts of the record in parallel with a pending arbitration, may
aggravate or exacerbate the dispute and may impact upon the integrity of the procedure. This is all the more so
in very public cases, such as this one, where issues of wider interest are raised, and where there is already sub-
stantial media coverage, some of which already being the subject of complaint by the parties.”). See also Teinver
SA v. Argentina, Decision on Provisional Measures in ICSID Case No. Arb/09/1 of 8 April 2016, ¶¶210, 239(a);
Chevron Corp. v. Ecuador, Order on Interim Measures in PCA Case No. 2009-23 of 14 May 2010.
150 See §10.02[M].
151 See §8.03[C]; §10.02[E].
152 Nova Group Invs., BV v. Romania, Procedural Order No. 7 in ICSID Case No. ARB/16/19 of 29 March 2017;
Hydro Srl v. Albania, Order on Provisional Measures in ICSID Case No. ARB/15/28 of 3 March 2016; Lao Holdings
NV v. Laos, Ruling on Motion to Amend the Provisional Measures Order in ICSID Case No. ARB(AF)/12/6 of 30
May 2014; Quiborax SA v. Bolivia, Decision on Provisional Measures in ICSID Case No. ARB/06/2 of 26 Febru-
ary 2010; Tokios Tokelés v. Ukraine, Order No. 3 in ICSID Case No. ARB/02/18 of 18 January 2005; Paushok v.
Mongolia, Order on Interim Measures in UNCITRAL Case of 2 September 2008. See also Teinver SA v. Argentina,
Decision on Provisional Measures in ICSID Case No. Arb/09/1 of 8 April 2016, ¶200 (provisional measures war-
ranted if there is indication of harassment or intimidation through use of criminal process); PNG Sustainable
Dev. Program Ltd v. Papua New Guinea, Decision on the Claimant’s Request for Provisional Measures in ICSID
Case No. ARB/13/33 of 21 January 2015, ¶141 (“provisional measures would generally be appropriate if there
were credible evidence that either party had made, directed or encouraged threats of physical harm against
employees, officers or agents of the other party”); Caratube Int’l Oil Co. LLP v. Kazakhstan, Decision Regarding
Claimant’s Application for Provisional Measures in ICSID Case No. ARB/08/12 of 31 July 2009, ¶139 (provisional
measures warranted if procedural right to continue with arbitration is precluded by criminal investigation);
Pugachev v. Russia, Interim Award in UNCITRAL Case of 7 July 2017, ¶317 (order to suspend extradition pro-
ceedings granted to protect claimant’s right to procedural integrity of arbitration).
153 As discussed elsewhere, corporate officers, directors and employees have often been permitted to invoke
1375
dispute.”154 The better view of such decisions, however, is that they give effect to the negative
obligations arising from an agreement to arbitrate.
[C] Remedies for Breach of Negative Obligation Not to Litigate

Arbitrable Disputes
As discussed above, some national courts historically refused to stay litigation of arbitrable
disputes, either holding that arbitration agreements were revocable or not subject to specific
performance.155 In contrast, under virtually all contemporary national legal systems, the prin-
cipal remedies for breach of an international arbitration agreement’s negative obligation not
to litigate arbitrable disputes are either a mandatory stay (i.e., suspension) of the improper-
ly-commenced litigation or dismissal of that litigation. In addition, a variety of other remedies
are also available for enforcing the negative obligations of an agreement to arbitrate, including
discretionary stays, antisuit injunctions, refusals to recognize judgments and damages actions.
[1] Mandatory Stay of Litigation

As discussed above, Article II(3) of the New York Convention requires the dismissal or stay of
proceedings in national courts brought in breach of an agreement to arbitrate.156 Article II(3)
does not leave national courts with any discretion to deny a dismissal or stay of local judicial
proceedings where an arbitration agreement is enforceable under the Convention. Rather, it
mandatorily requires that national courts “shall” refer parties to arbitration.157 As discussed
arbitration agreements concluded by the company with which they are associated, notwithstanding the fact
that these individuals are fairly clearly not parties to the arbitration agreement. See §10.02[M].
154 Teinver SA v. Argentina, Decision on Provisional Measures in ICSID Case No. Arb/09/1 of 8 April 2016,
¶210; Lao Holdings NV v. Laos, Ruling on Motion to Amend the Provisional Measures Order in ICSID Case No.
ARB(AF)/12/6 of 30 May 2014, ¶¶4, 42; Biwater Gauff (Tanzania) Ltd v. Tanzania, Procedural Order No. 3
in ICSID Case No. ARB/05/22 of 29 September 2006, ¶¶135-36. See also Chevron Corp. v. Ecuador, Order on
Interim Measures in PCA Case No. 2009-23 of 14 May 2010; Paushok v. Mongolia, Order on Interim Measures in
UNCITRAL Case of 2 September 2008; City Oriente Ltd v. Ecuador, Decision on Provisional Measures in ICSID
Case No. ARB/06/21 of 19 November 2007; Casado v. Chile, Decision on Provisional Measures in ICSID Case No.
ARB/98/2 of 25 September 2001.
155 See §§1.01[B][2] & [5]; §5.01[C][5]. In other jurisdictions, only a discretionary stay of litigation was
historically available for arbitration agreements providing for a foreign arbitral seat. See R. Merkin, Arbitration
Law ¶¶8.43-67 (1991 & Update March 2019).
156 See §2.01[A][1]; §8.02[A][1].
157 See §2.01[A][1][a]; §5.01[B]; §8.03[A][1]; Answers in Genesis of Ky., Inc. v. Creation Ministries, 556 F.3d
459, 469 (6th Cir. 2009) (“‘nothing discretionary about Article II(3) of the Convention’”) (quoting McCreary
Tire & Rubber Co. v. CEAT SpA, 501 F.2d 1032, 1037 (3d Cir. 1974)); InterGen NV v. Grina, 344 F.3d 134, 141
(1st Cir. 2003) (“Given this regime, it clearly appears that enforcing arbitration clauses under the New York
Convention is an obligation, not a matter committed to district court discretion”); Smith/Enron Cogeneration
Ltd, P’ship v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 93 (2d Cir. 1999) (“The purpose behind this drafting
choice is clear: the courts of a signatory to the Convention should abide by its goal of enforcing international
agreements to arbitrate disputes”); Tierra Verde Escape, LLC v. Brittingham Group, LLC, 2017 WL 3699554, at
*3 (W.D. Mich.) (“So long as [the] jurisdictional requirements are met, ‘[t]he language of the treaty and its
statutory incorporation provide for no exceptions. When any party seeks arbitration, if the agreement falls
within the convention, [the court] must compel the arbitration unless the agreement is “null and void, inop-
erative, or incapable of being performed.”’”) (quoting Answers in Genesis of Ky., Inc., 556 F.3d at 469); Davis v.
Cascade Tanks, LLC, 2014 WL 3695493, at *5 (D. Or.) (“mandatory nature of [Article II(3)]”); Phoenix Bulk
Carriers Ltd v. Oldendorff Carriers GmbH & Co., 2002 WL 31478198, at *2 (S.D.N.Y.) (“this court must compel
arbitration unless the ‘making’ of the arbitration agreement is in question”); CanWest Global Commc’ns Corp.
v. Mirkaei Tikshoret Ltd, 804 N.Y.S.2d 549, 562-63 (N.Y. Sup. Ct. 2005); Rena K [1979] QB 377, 393 (QB)
1376
above, this obligation applies equally to arbitration agreements providing for an arbitral seat
in the state where litigation is (wrongfully) initiated and for an arbitral seat located abroad.158
Some national arbitration legislation expressly provides for a stay of litigation brought in
violation of a valid arbitration agreement. That is the case in all leading common law systems,
including the United States,159 England,160 Canada,161 Singapore,162 Hong Kong,163 Malaysia,164
(English High Ct.) (“Section 1 of the Arbitration Act 1975, giving effect to [Article II(3) of the Convention],
compels the recognition and enforcement of convention (i.e., non-domestic) arbitration agreements by re-
quiring a court, except in certain specified cases, to stay any legal proceedings brought in respect of a matter
referred to arbitration under such agreement”); Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., 86 FCR 374,
393 (Australian Fed. Ct. 1998) (“the Court must stay the proceedings and refer the parties to arbitration”). See
Dell Computer Corp. v. Union des Consommateurs, [2007] 2 SCR 801, ¶39 (Canadian S.Ct.) (“Article II of the
Convention provides that a court of a contracting state that is seized of an action in a matter covered by an arbi-
tration clause must refer the parties to arbitration. At present, 142 countries [(164 as of June 2020)] are parties
to the Convention. The accession of this many countries is evidence of a broad consensus in favour of the insti-
tution of arbitration.”); A. van den Berg, The New York Arbitration Convention of 1958 135 (1981) (“mandatory
character of the referral by a court to arbitration pursuant to Article II(3) is an internationally uniform rule”).
158 See §2.03[C][1][a]; McMahon, Implementation of the United Nations Convention on Foreign Arbitral
Awards in the United States, 2 J. Mar. L. & Comm. 735, 748-49 (1971); Paulsson, The New York Convention in
International Practice: Problems of Assimilation, in ASA, The New York Convention of 1958 100, 103-04 (1996).
The only conditions are that the arbitration agreement satisfy the jurisdictional requirements of the New York
Convention (see §§2.01[B] et seq.) and that it be valid and binding (see Chapter 5).
159 U.S. FAA, 9 U.S.C. §3 (“If any suit or proceeding be brought … upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied
that the issue involved in such suit or proceeding is referable to arbitration under such agreement, shall on ap-
plication of one of the parties stay the trial of the action until such arbitration has been had in accordance with
the terms of the agreement”); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (U.S. S.Ct. 1985); Hughes,
Hooker & Co. v. Am. S.S. Owners Mut. Protection & Indem. Ass’n, Inc., 2005 WL 1384055, at *4 (S.D.N.Y.) (“dis-
trict court has no discretion to deny a stay if a valid agreement to arbitrate exists and the claims at issue come
within the scope of that agreement”); Double Sunrise Inc. v. Morrison Mgt Specialists Inc., 149 F.Supp.2d 1039,
1045 (N.D. Ill. 2001); State v. Philip Morris USA, Inc., 2006 WL 3490937 (N.C. Super. Ct.). See also Restate-
ment of the U.S. Law of International Commercial and Investor-State Arbitration §§2.1(a)-(b) (2019) (arbitration
agreement enforced by stay or order compelling arbitration).
160 English Arbitration Act, 1996, §9(4) (“court shall grant a stay unless satisfied that the arbitration agree-
ment is null and void, inoperative, or incapable of being performed”); Fiona Trust & Holding Corp. v. Privalov
[2007] EWCA Civ 20, ¶37 (English Ct. App.) (“stay must be granted [if arbitration agreement exists], in the
light of the mandatory ‘shall’ in §9(4)”), aff’d, [2007] UKHL 40 (House of Lords); Capital Trust Inv. Ltd v.
Radio Design TJ AB [2002] EWCA Civ 135 (English Ct. App.); Halki Shipping v. Sopex Oil [1998] 1 Lloyd’s
Rep. 465 (English Ct. App.); Thames Valley Power Ltd v. Total Gas & Power Ltd [2005] EWHC 2208, ¶38
(QB) (English High Ct.) (“Provided the applicant has acknowledged the legal proceedings and has not taken
any step in them to answer the substantive claim, the court is bound to grant him a stay unless the Arbitration
Agreement is null and void, inoperative or incapable of being performed”).
161 Alberta International Commercial Arbitration Act, §7; Ontario International Commercial Arbitration
Act, §9; GreCon Dimter Inc. v. J. R. Normand Inc., [2005] SCC 46 (Canadian S.Ct.); Fibreco Pulp Inc. v. Star Ship-
ping AS, [1998] FCJ No. 889 (Canadian Fed. Ct. App.); Nanisivik Mines Ltd v. F.C.R.S. Shipping Ltd, [1994]
2 FC 662 (Canadian Fed. Ct. App.); Dalimpex Ltd v. Janicki, [2003] 228 DLR4th 179 (Ontario Ct. App.);
Automatic Sys. Inc. v. Bracknell Corp., [1994] 18 OR3d 257 (Ontario Ct. App.); Tanar Indus. Ltd v. Kvaerner En-
viropower Inc., [1994] ABCA 346 (Alberta Ct. App.); Kaverit Steel & Crane Ltd v. Kone Corp., XIX Y.B. Comm.
Arb. 643, 645 (Alberta Ct. App. 1992) (1994); Gulf Canada Res. Ltd v. Arochem Int’l Ltd, (1992) 66 BCLR2d
113 (B.C. Ct. App.); Lorneville Mech. Contractors Ltd v. Clyde Bergemann Canada Ltd, [2017] NSSC 119 (Nova
Scotia Sup. Ct.); Kocur v. FirstService Corp., [2017] ONSC 6114 (Ontario Super. Ct.); Lafarge Canada Inc. v. City
of Edmonton, [2015] ABQB 56 (Alberta Q.B.). See also Nanisivik Mines Ltd v. Canarctic Shipping Co., [1994] 113
DLR4th 536 (Canadian Fed. Ct. App.); Dongnam Oil & Fats Co. v. Chemex Ltd, [2004] FC 1732 (Canadian
1377
Australia,165 New Zealand,166 Kenya,167 India168 and Pakistan.169 In all of these jurisdictions, the
Fed. Ct.); Arbella SA v. Aghia Markella, [1995] FCJ No. 723 (Canadian Fed. Ct.); Miramichi Pulp & Paper Inc. v.
Canadian Pac. Bulk Ship Servs. Ltd, [1992] 58 FTR 81 (Canadian Fed. Ct.); Coopers & Lybrand Ltd v. Canpotex
Shipping Servs. Ltd, [1987] 16 FTR 79 (Canadian Fed. Ct.).
162 Singapore International Arbitration Act, §6(2) (“The court to which an application has been made in
accordance with subsection (1) shall make an order, upon such terms or conditions as it may think fit, staying
the proceedings … unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable
of being performed”); Tomolugen Holdings Ltd v. Silica Investors Ltd, [2015] SGCA 57 (Singapore Ct. App.);
Ling Kong Henry v. Tanglin Club, [2018] SGHC 153 (Singapore High Ct.); Gulf Hibiscus Ltd v. Rex Int’l Holding
Ltd, [2017] SGHC 210 (Singapore High Ct.); Tjong Very Sumito v. Antig Invs. Pte Ltd, [2009] 4 SLR(R) 732,
743 (Singapore High Ct.) (“If the applicant can show that there is an applicable arbitration agreement, then
the court must grant a stay of proceedings”) (emphasis added); Coop Int’l Pte Ltd v. Ebel SA, XXVI Y.B. Comm.
Arb. 832, 839 (Singapore High Ct. 1998) (2001) (“Art. 8 of the Model Law requires a mandatory stay of pro-
ceedings unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of
being performed”).
In a recent decision, however, the Singapore Court of Appeal upheld a decision to lift a stay of litigation
previously granted by the Singapore High Court in Gulf Hibiscus, holding that the prospect of a potential over-
lapping arbitration was “largely illusory” and that “it was ill-conceived to stay the Respondent’s claim against
the Appellants, which was not subject to any arbitration agreement, on account of an arbitration agreement
between the Respondent and a non-party to the original dispute.” See Rex Int’l Holding Ltd v. Gulf Hibiscus Ltd,
[2019] SGCA 56 (Singapore Ct. App.).
163 Hong Kong Arbitration Ordinance, §§20(1), (5) (“If the court refers the parties in action to arbitra-
tion, it must make an order staying the legal proceedings in that action”); Tai Hing Cotton Mill Ltd v. Glencore
Grain Rotterdam BV, [1995] HKCA 626 (H.K. Ct. App.); Leung Kwok Hung v. Johnson Controls H.K. Ltd,
[2018] HKCFI 1500 (H.K. Ct. First Inst.); Neo Intelligence Holdings Ltd v. Giant Crown Indus., [2017] HKCFI
2088 (H.K. Ct. First Inst.); Chimbusco Int’l Petroleum (Singapore) Pte Ltd v. Fully Best Trading Ltd, [2015]
HKCFI 2196, ¶¶11-12, 19 (H.K. Ct. First Inst.) (“As a matter of public policy, Hong Kong as a party to the
New York Convention has the duty to comply with its duties under Article II of the Convention: to recognize
and enforce an arbitration agreement and to stay actions before the Court in breach of a valid and subsisting
arbitration agreement. … Unless the point is clear, that there is no valid arbitration agreement, the Court
should not attempt to resolve the issue, and the matter should be stayed to arbitration.”); Lin Meng v. Chen
Shu Quan, [2012] HKCFI 328, ¶25 (H.K. Ct. First Inst.) (“Once the conditions of [Article 8] are satisfied, a
stay of the legal action is mandatory”); Rondabosh Int’l Ltd v. China Ping An Ins. (H.K.) Co., [2009] HKCFI
1198, ¶5 (H.K. Ct. First Inst.); Ocean Park Corp. v. Proud Sky Co., [2007] HKCFI 1221 (H.K. Ct. First Inst.);
Good Year Prof’l Serv. Co. v. Penta-Ocean Constr. Co., [2002] HKCFI 786 (H.K. Ct. First Inst.); F & D Bldg
Servs. Eng’g Co. v. Chevalier, [2001] 3 HKCFI 824 (H.K. Ct. First Inst.); Glencore Int’l AG v. Bright China Int’l
Ltd, [1998] HKCFI 878 (H.K. Ct. First Inst.); Orienmet Minerals Co. v. Winner Desire Ltd, [1997] HKCFI 299
(H.K. Ct. First Inst.).
164 Malaysian Arbitration Act, §10(1) (“A court before which proceedings are brought in respect of a matter
which is the subject of an arbitration agreement shall, where a party makes an application before taking any
other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the
agreement is null and void, inoperative or incapable of being performed”); Press Metal Sarawak Sdn Bhd v. Etiqa
Takaful Bhd, [2016] 5 MLJ 417 (Malaysian Fed. Ct.); CMS Energy SDN RHB v. Poson Corp., [2008] MLJ 561,
562 (Malaysian High Ct.) (“Under §10(1) … the Court shall stay all proceedings before it in respect of matter
which is the subject of an arbitration agreement”).
Malaysia’s Federal Court recently set aside a default judgment which was obtained in breach of an
arbitration agreement. See Tindak Murni Sdn Bhd v. Juang Setia Sdn Bhd, [2020] MLJU 232 (Malaysian Fed.
Ct.).
165 Australian International Arbitration Act, §16 & Schedule 2, Art. 8(1) (“A court before which an action
is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than
when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it
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obligation to stay litigation is mandatory, not discretionary.170 (In addition, as discussed above,
some national courts also exercise a discretionary power to stay litigation pending arbitral
proceedings even when not mandatorily required to do so (for example, because a dispute
in national courts involves nonparties to an arbitration agreement or disputes not within the
arbitration agreement).171)161162163164165166167168169170171
finds that the agreement is null and void, inoperative or incapable of being performed”); Rinehart v. Hancock
Prospecting, [2019] HCA 13 (Australian High Ct.); Comandate Marine Corp. v. Pan Australia Shipping Pty Ltd,
[2006] FCAFC 192 (Australian Fed. Ct.).
166 New Zealand Arbitration Act, Art. 8(1) (“A court before which proceedings are brought in a matter
which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting that
party’s first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration
161
162
unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is
163
164 in fact any dispute between the parties with regard to the matters agreed to be referred”); Zurich Australian
not
Ins. Ltd v. Cognition Educ. Ltd, [2014] NZSC 188 (N.Z. S.Ct.); Pathak v. Tourism Transp. Ltd, [2002] 3 NZLR
165
166
681 (Auckland High Ct.).
167 Kenyan Arbitration Act, Art. 6(1) (“A court before which proceedings are brought in a matter which
is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party
enters appearance is sought, stay the proceedings and refer the parties to arbitration unless if finds – (a) that the
arbitration agreement is null and void, inoperative or incapable of being performed; or (b) that there is not in
fact any dispute between the parties with regard to the matters agreed to be referred to arbitration”); ICEA Lion
Life Assur. Co. Ltd v. Jomo Kenyatta Univ. of Agric. & Tech., Civil Suit No. 121/2017 (Nairobi High Ct.); Mugoya
Constr. & Eng’g Ltd v. Nat’l Social Sec. Fund Bd of Trustees, Civil Suit No. 59/2005 (Nairobi High Ct.).
168 Indian Arbitration and Conciliation Act, §54 (“a judicial authority, on being seized of a dispute regard-
ing a contract made between persons to whom §53 applies and including an arbitration agreement, whether
referring to present or future differences, which is valid under that section and capable of being carried into
effect, shall refer the parties on the application of either of them or any person claiming through or under him
to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority
in case the agreement or the arbitration cannot proceed or becomes inoperative”); Shin Etsu Chem. Co. Ltd v.
MS Aksh Optifibre Ltd, Civil Appeal No. 5048/2005 (Indian S.Ct.) (“Under [Article 54] judicial authority has
no discretion. It is mandatory for the judicial authority to refer the parties to arbitration on the existence of
conditions stipulated in the section.”).
169 Pakistani Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards)
Act, Art. 4(1) (“A party to an arbitration agreement against whom legal proceedings have been brought in
respect of a matter which is covered by the arbitration agreement may, upon notice to the other party to the
proceedings, apply to the court in which the proceedings have been brought to stay the proceedings in so far
as they concern that matter”); Cummins Sales & Serv. Ltd v. Cummins Middle E., FZE 2013 CLD 291 (Pakistani
High Ct.).
170 See authorities cited in §2.01[A][1][a]; §5.01[B][2]; §8.03[A][1]; §8.03[C][1]. A few courts have
suggested (wrongly) that the obligation to refer parties to arbitration is only discretionary. See, e.g. Hi-Fert Pty
Ltd v. Kiukiang Maritime Carriers Inc., 12(7) Mealey’s Int’l Arb. Rep. C-1 (Australian Fed. Ct. 1997) (1997);
CTA Int’l Pty Ltd v. Sichuan Changhong Elec. Co., [2002] VSC 374, ¶17 (Victoria Sup. Ct.) (dicta referring
to Australian International Arbitration Act, 1974, §7, which omitted “only” from text of local enactment of
Article 8); Australian Granites Ltd v. Eisenwerk Hensel Bayreuth Dipl.-Ing. Burkhardt GmbH, [2001] 1QdR 461
(Queensland Sup. Ct.). See also M. Jacobs, International Commercial Arbitration in Australia: Law and Practice
¶8.70 (1992); Governors Balloon Safaris Ltd v. Skyship Co. Ltd, Civil Case No. 461/2008 (Nairobi High Ct.)
(suggesting that court may exercise discretion in choosing whether to stay litigation “if it is in the interest of
justice and judicial process”).
171 See §7.03[E][6]; §7.03[I][3]; §9.02; §10.01[A].
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In other countries (principally civil law jurisdictions, including France,172 Switzerland,173

Germany,174 the Netherlands,175 Belgium176 and Peru177), legislation requires courts to decline
jurisdiction over arbitrable disputes. In these states, courts do not merely stay pending litiga-
tions, but dismiss them entirely.
Whether through a stay or a dismissal of litigation, it is the mandatory obligation and
uniform practice of national courts in developed jurisdictions to refuse to hear the merits of
claims, initiated in litigation, which are properly subject to arbitration. As one national court
put it:
“A district court must stay proceedings if it is demonstrated that the parties have agreed
in writing to arbitrate the issues underlying the district court proceeding. … The Act
‘leaves no room for the exercise of discretion by a district court, but instead mandates
that district courts shall direct the parties to proceed to an arbitration on issues as to
which an arbitration agreement has been signed.’”178
172 French Code of Civil Procedure, Art. 1448(1) (“When a dispute subject to an arbitration agreement is
brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized
of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”); E. Gaillard & J.
Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration ¶666 (1999).
173 Swiss Law on Private International Law, Art. 7 (“if the parties have concluded an arbitration agreement
with respect to an arbitrable dispute, the Swiss court before which such dispute is brought shall must decline ju-
risdiction unless …”) (emphasis added); Judgment of 6 August 2012, DFT 4A_119/2012, ¶3.2 (Swiss Fed. Trib.)
(“When a jurisdictional defense based on the arbitration agreement is raised before the state court … [t]he
court must deny jurisdiction unless a summary review of the arbitration agreement leads to the conclusion that
it is void, inoperative, or incapable of being performed. … This ensures that the decision of the arbitral tribunal
as to its own jurisdiction … is not prejudged by the decision of the state court.”); Volken, in D. Girsberger et
al. (eds.), Zürcher Kommentar zum IPRG Art. 7, n.47 (2d ed. 2004) (“In the case it has been established that
there is a binding arbitration agreement concerning an arbitrable dispute, a Swiss judge who is nevertheless
addressed with a claim has to deny the court’s jurisdiction …”).
174 German ZPO, §1032(1) (“Should proceedings be brought before a court regarding a matter that is sub-
ject to an arbitration agreement, the court is to dismiss the complaint as inadmissible provided the defendant
has raised the corresponding objection prior to the hearing on the merits of the case commencing, unless the
court determines the arbitration agreement to be null and void, invalid, or impossible to implement”); Geimer,
in R. Zöller (ed.), Zivilprozessordnung §1032, ¶7 (32d ed. 2018).
175 Netherlands Code of Civil Procedure, Art. 1022 (“A court seized of a dispute in respect of which an
arbitration agreement has been concluded shall declare that it has no jurisdiction if a party invokes the existence
of the said agreement before submitting a defense, unless the agreement is invalid”) (emphasis added).
176 Belgian Judicial Code, Art. 1682(1) (“The Court before which is brought a dispute that is also the object
of an arbitration agreement shall declare itself without jurisdiction at the request of a party, unless the arbitra-
tion agreement is invalid with regard to this dispute or has ceased to exist”).
177 Peruvian Arbitration Law, Art. 16(1) (“If an action is brought in a matter that is subject to arbitration,
such circumstance may be pleaded as an objection to the jurisdiction of the court, even if the arbitration has not
commenced”).
178 Danisco AS v. Novo Nordisk AS, 2003 U.S. Dist. LEXIS 1842, at *2 (S.D.N.Y.) (quoting WorldCrisa Corp.
v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997)). See also Amizola v. Dolphin Shipowner, SA, 354 F.Supp.2d 689, 697
(E.D. La. 2004) (“Because all of the elements to compel arbitration are met, the motion to stay the litigation
and to compel arbitration is granted”); A. Sanderson & Son v. Armour & Co. [1922] SC 117 (House of Lords)
(“If the parties have contracted to arbitrate, to arbitration they must go”); Capital Trust Inv. Ltd v. Radio Design
TJ AB [2002] EWCA Civ 135, ¶54 (English Ct. App.) (“On an application under [§9] the court shall grant
a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being per-
formed”); Union of India v. Lief Hoegh & Co., IX Y.B. Comm. Arb. 405, 410 (Gujarat High Ct. 1982) (1984) (“I
do not think … that there is any discretion which the Court enjoins when it is called upon to decide whether
the proceedings in the suit pertaining to a contract containing a foreign arbitral clause should be stayed under
1380
A stay or dismissal of litigation is akin to an order of injunctive relief granting specific perfor-
mance of the obligations imposed by arbitration agreements, and particularly the negative ob-
ligation not to pursue litigation in national courts. Indeed, the introduction of this obligation
on national courts to order specific performance of the negative duties imposed by interna-
tional arbitration agreements, which were historically often not enforceable in this manner,179
was one of the central achievements of the Geneva Protocol, the New York Convention and
modern arbitration statutes.180
Obtaining a dismissal or stay of litigation is often sufficient to give effect to the parties’
arbitration agreement, because it effectively forces a claimant into the arbitral process. As one
court has remarked,
“[t]he concept [of statutory provisions providing for a stay or suspension of litigation]
seems to be that a power to grant a stay is enough without the power to order that the
arbitration proceed, for, if a stay be granted, the plaintiff can never get relief [on his
claims] unless he proceeds to arbitration.”181
It is well-settled that a court will not refer the parties to arbitration sua sponte or ex officio. As
discussed above, the right to arbitrate may be waived (including by not raising the existence
of an arbitration agreement or seeking an order staying litigation or referring the parties to
arbitration).182 Consistent with this, courts in Model Law183 and other184 jurisdictions have
§3 of the Foreign Awards Amendment Act except in those contingencies which are specified in §3 itself. The
said contingencies are that the agreement is null and void, inoperative or incapable of being performed, or
in fact there is no dispute between the parties pertaining to the matter agreed to be referred under the agree-
ment.”); Hotels.com (U.S.) v. Zuz Tourism Ltd, XXXI Y.B. Comm. Arb. 791, 794-95 (Israeli S.Ct. 2005) (2006).
179 See §§1.01[B][4]-[5].
180 See §1.01[C]; §1.04[A][1]; §2.01[A][1][a]; §5.01[B].
181 Anaconda v. Am. Sugar Refining Co., 322 U.S. 42, 45 (U.S. S.Ct. 1944). See also Standard Magnesium Corp.
v. Fuchs, 251 F.2d 455, 458 (10th Cir. 1957) (“If the agreement provides that where one party refuses or fails to
submit to arbitration, that an arbitrator may be appointed and that the arbitration may proceed ex parte, and
further provides for the procedure to be followed in such an ex parte proceeding, there is no occasion to invoke
the remedy of §4. Such a remedy is necessary only in those cases where one party refuses to participate in the
arbitration and a court order is necessary in order for the arbitration to proceed ex parte.”).
182 See §8.03[C][1].
183 See, e.g., Clyde Bergemann Canada Ltd v. Lorneville Mech. Contractors Ltd, [2018] NSCA 14, 30 (Nova
Scotia Ct. App.); Penncorp Life Ins. Co. v. Mirza, [2016] MBQB 233, ¶9 (Manitoba Q.B.); United Labs., Inc. v.
Abraham, [2002] 62 OR3d 26 (Ontario Super. Ct.); Kolinker Indus. Equip. Ltd v. Longhill Indus. Ltd, [2004]
HKDC 65 (H.K. Dist. Ct.); Judgment of 5 October 2006, D. Andrés v. Díez Carrillo SL, Decision No. 170/2006
(Palma de Mallorca Audiencia Provincial); Judgment of 17 April 2007, Hrvatsko Mirovinsko Osiguranje v. EDIS,
Case No. XLVII Pž-6756/04-3 (Croatian High Comm. Ct.); Judgment of 29 April 2001, Case No. VTS RH
Pž-5168/01 (Croatian High Comm. Ct.).
184 See, e.g., In re Pharm. Benefit Managers Antitrust Litg., 700 F.3d 109, 116 (3d Cir. 2012); Marzano v. Profi-
cio Mortg. Ventures, LLC, 942 F.Supp.2d 781, 799 (N.D. Ill. 2013) (“Absent a request to compel arbitration and
a showing that Plaintiffs have refused to arbitrate, this Court will not compel arbitration sua sponte”); Lopardo
v. Lehman Bros., Inc., 548 F.Supp.2d 450, 457 (N.D. Ohio 2008) (“court may not sua sponte force parties to
enforce an arbitration agreement”); Walker & Zanger (W. Coast) Ltd v. Stone Design SA, 4 F.Supp.2d 931 (C.D.
Cal. 1997) (refusing to reverse default judgment because respondent failed to invoke arbitration clause); Stan-
dard Tallow Corp. v. KIL-Mgt AS, 901 F.Supp. 147 (S.D.N.Y. 1995) (finding parties’ agreement to arbitrate valid
but refusing to provide relief because respondents had not filed petition to compel arbitration); Boyd v. Cook,
906 N.W.2d 31, 42 (Neb. 2018) (“Arbitration provisions are not self-executing. It is improper for a court to
try to enforce such a contractual right on behalf of the parties. … Because no party has sought to enforce the
arbitration agreement, it was error for the district court to do so on its own accord.”); Mercury Ins. Group v.
Super. Ct. of San Bernardino County, 965 P.2d 1178, 1185 (Cal. 1998) (“A trial court is not obligated to force
1381
repeatedly held that an order to refer parties to arbitration will only be made at the request of
a party.
[2] Dismissal of Litigation

It is sometimes suggested that common law and civil law jurisdictions take different approach-
es to the question whether a national court is divested of jurisdiction by an arbitration agree-
ment, with civil law regimes answering affirmatively and common law systems permitting a
form of dual arbitral and judicial jurisdiction.185 This analysis rests on the observation that civil
law courts typically “dismiss” a litigation for lack of jurisdiction when presented with a valid
arbitration agreement,186 while common law courts typically “stay” the litigation while retain-
ing “jurisdiction”187 (although even common law courts sometimes dismiss proceedings).188
[the parties] to contractual arbitration sua sponte. Indeed, from all that appears, it is not authorized to do so.”);
Dalian Hualiang Enter. Group Co. v. Louis Dreyfus Asia Pte Ltd, [2005] SGHC 161, ¶17 (Singapore High Ct.)
(“a court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if
a party so requests not later than when submitting his first statement on the substance of the dispute, refer the
parties to arbitration”) (emphasis added).
185 Schaefer, Borrowing and Cross-Fertilising Arbitration Laws: A Comparative Overview of the Development of
Hong Kong and Singapore Legislation for International Commercial Arbitration, 16(4) J. Int’l Arb. 41, 62 (1999)
(“The Model Law speaks of referring ‘the parties to arbitration’; this is technically done in a common law ju-
risdiction by means of stay of court proceedings. A civil law jurisdiction, such as Germany, adopts a different
mechanism. The Courts in Germany do not stay the proceedings, but do not accept the suit; they reject the
action as inadmissible.”); Veeder, Laws and Court Decisions in Common Law Countries and the UNCITRAL
Model Law, in A. van den Berg (ed.), Preventing Delay and Disruption of Arbitration 169, 170-71 (1991).
186 See §8.03[C][1]; Sanders, Arbitration Law in Western Europe: A Comparative Survey, in M. Domke (ed.),
International Trade Arbitration: A Road to World-Wide Cooperation 137-38 (1958) (“The existence of an arbitra-
tion agreement deprives the court of its jurisdiction. Courts lose their competence when the defendant relies
on an arbitration agreement”).
187 See §8.03[C][1]; Katz v. Cellco P’ship, 794 F.3d 341, 347 (2d Cir. 2015) (“while we recognize the impetus
for a rule permitting dismissal, we conclude that the text, structure, and underlying policy of the FAA mandate
a stay of proceedings when all of the claims in an action have been referred to arbitration and a stay requested”);
Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 732 n.7 (7th Cir. 2005) (“proper course of action when a party
seeks to invoke an arbitration clause is to stay the proceedings pending arbitration rather than to dismiss out-
right”); Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1153 n.1 (9th Cir. 2004) (preferring stay of litigation
over dismissal); Lloyd v. Hovensa, LLC, 369 F.3d 263, 268-69 (3d Cir. 2004) (“plain language of §3 affords a dis-
trict court no discretion to dismiss a case where one of the parties applies for a stay pending arbitration”); China
Media Express Holdings, Inc. by Barth v. Nexus Executive Risks, Ltd, 182 F.Supp.3d 42 (S.D.N.Y. 2016) (“FAA
directs the district court, ‘on application of one of the parties,’ to enter a stay in a case where the asserted claims
are ‘referable to arbitration’”); Precision Press Inc. v. MLP U.S.A., Inc., 620 F.Supp.2d 981, 995 (N.D. Iowa 2009)
(“plain text of §3 provides a district court no authority to dismiss a case”); Boateng v. Gen. Dynamics Corp., 473
F.Supp.2d 241, 252 (D. Mass. 2007) (“Defendants urge the Court to dismiss in favor of arbitration. The Court
declines to do so. … Among other things, given the possibility that the arbitrator may conclude that arbitration
was in fact waived, and therefore may return the case to this Court, the Court elects to stay the proceedings
pending arbitration.”); Doleman & Sons v. Ossett Corp. [1912] 3 KB 257, 267 (English Ct. App.).
188 See, e.g., Brittania-U Nigeria, Ltd v. Chevron USA, Inc., 866 F.3d 709 (5th Cir. 2017) (affirming lower
court’s decision to dismiss case on basis of arbitration agreement); Sourcing Unlimited, Inc. v. Asimco Int’l Inc.,
526 F.3d 38, 48 (1st Cir. 2008) (“Given the history of this case and the delay occasioned, dismissal of the
underlying complaint is appropriate. There is no basis for the district court to supervise an arbitration which
will occur in China.”); Alford v. Dean Witter Reynolds, 975 F.2d 1161, 1164 (5th Cir. 1992) (“The weight of au-
thority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted
to arbitration”); Acosta v. Fair Isaac Corp., 669 F.Supp.2d 716, 724 (N.D. Tex. 2009) (dismissing action with
prejudice because all claims were subject to valid arbitration agreement); RoadTechs Inc. v. MJ Highway Tech.,
1382
From an international perspective, this is largely a question of semantics, rather than sub-
stance. In both civil and common law jurisdictions, the substantive effect of the court’s action
is to forbid the plaintiff from proceeding on the merits of its claims in national courts, whose
role is then limited to reviewing a subsequent award (or, in rare instances, providing ancillary
judicial assistance in aid of the arbitral process).189 From this perspective, and for the most
part, there is no real difference between the civil law dismissal and the common law stay.
Nonetheless, there may be circumstances in which national law will accord different legal
consequences to a stay, as contrasted to a dismissal. For example, issues concerning rights of
appeal from the first instance court’s decision, the effect of the litigation on statutes of lim-
itations, liability for legal costs and similar issues may be treated differently under local law
depending on whether a litigation is stayed or dismissed. Thus, under the FAA, courts have
held that by staying (rather than dismissing) litigation of claims that are subject to arbitration,
they retain authority to ensure compliance with the arbitration agreement.190 These are gen-
erally matters of local procedural law, not regulated by the New York Convention (or other
international arbitration conventions), which differ among jurisdictions. Nonetheless, they
obviously may have important practical consequences in particular cases.
[3] Arguable Exceptions to Mandatory Stays or Dismissals of National Court

Litigation
A number of national court decisions have considered arguments that litigation proceedings
should not be stayed or dismissed, despite the existence of a valid arbitration agreement.
These arguments have relied on a variety of domestic grounds, often focused on principles of
judicial economy or case management.
In the United States, courts have considered arguments that, when a dispute involves
both arbitrable claims and claims that are not subject to arbitration, then the litigation should
Ltd, 79 F.Supp.2d 637, 640 (E.D. Va. 2000) (“it is within the district court’s discretion whether to dismiss or
stay an action after referring it to arbitration”); SATCOM Int’l Group plc v. ORBCOMM Int’l Partners, LP, 49
F.Supp.2d 331, 337 n.4 (S.D.N.Y. 1999) (“[T]here was previously an open question as to whether the court that
orders arbitration under the Convention must dismiss the action or may retain jurisdiction in aid of arbitration.
Nonetheless, it now appears that the Court may retain jurisdiction and stay the action under its inherent power
to control its docket.”), aff’d, 205 F.3d 1324 (2d Cir. 1999).
189 See Katz v. Cellco P’ship, 794 F.3d 341, 342 (2d Cir. 2015) (“In an effort to more efficiently manage their
dockets, some district courts in this Circuit will dismiss an action after having compelled arbitration pursuant
to a binding arbitration agreement between the parties. … By dismissing the case, however, the District Court
made the matter immediately appealable as a final order, provoking additional litigation. … Accordingly we
vacate the District Court’s dismissal of the action, and remand with instructions to stay the action pending arbi-
tration.”); Chamois v. Countrywide Home Loans, 2003 WL 23022033, at *5 (S.D.N.Y.) (electing to stay litigation
pending arbitration, rather than dismiss it, because “granting a stay, which is an unappealable interlocutory or-
der, is preferable to dismissing an action because ‘[u]nnecessary delay of the arbitral process through appellate
review is disfavored’”) (quoting Salim Oleochem. v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir. 2002)). See also
Ibeto Petrochemical Indus., Ltd v. M/T Beffen, 412 F.Supp.2d 285, 292 (S.D.N.Y. 2005) (same).
190 See, e.g., LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 892 (D.C. Cir. 1998) (retaining jurisdiction
after staying litigation permitted court to sanction attempts by litigant to obstruct arbitration); Brandon, Jones,
Sandall, Zeide, Kohn, Chalal & Musso, PA v. MedPartners, Inc., 312 F.3d 1348, 1355 (11th Cir. 2002) (retaining
jurisdiction after staying litigation permitted court to confirm award and award attorneys’ fees).
In contrast, other courts have, apparently incorrectly, held that staying litigation would serve no purpose
if all claims were subject to arbitration. See, e.g., Next Step Med. Co., Inc. v. Johnson & Johnson Int’l, 619 F.3d 67,
71 (1st Cir. 2010) (district court has discretion to dismiss action “if all claims asserted in the case are found
arbitrable”); Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992). Compare Lloyd v. Hovensa,
LLC, 369 F.3d 263, 269 (3d Cir. 2004) (Section 3 requires a stay).
1383
proceed under an “intertwining” doctrine.191 That doctrine suggested that it is more efficient
to hear all related claims in a single proceeding and, since the entire dispute cannot be arbitrat-
ed, a litigation involving all claims should be permitted to proceed.192
U.S. courts have correctly held that this doctrine is inapplicable under the New York
Convention,193 which mandatorily requires national courts to refer arbitrable claims to arbi-
tration.194 The same result also applies in the United States under the domestic FAA, which
“requires district courts [and state courts] to compel arbitration of pendent arbitrable claims
when one of the parties files a motion to compel, even where the result would be the possibly
inefficient maintenance of separate proceedings in different forums.”195
U.S. courts have also considered, and consistently rejected, arguments that litigation in-
volving arbitrable disputes should be permitted to proceed because it includes nonparties to
the arbitration agreement.196 (Indeed, as discussed below, U.S. courts have taken the opposite
approach, frequently issuing discretionary stays of litigation involving nonparties to an arbi-
tration, pending the outcome of an arbitration involving related issues on disputes.197)
191 Some U.S. lower courts adopted a so-called “intertwining doctrine,” which provided that “[w]hen arbi-
trable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and
legally, [a] district court … may in its discretion deny arbitration as to the arbitrable claims and try all the claims
together in federal court.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 216-17 (U.S. S.Ct. 1984).
192 See Gergel v. High View Homes, LLC, 996 P.2d 233, 234 (Colo. App. 1999) (“The purpose of the inter-
twining doctrine is to prevent inconsistent determinations by different forums. If the factual and legal issues are
inextricably intertwined, then the claims must not be severed because severance could result in an arbitrator
infringing upon a court’s duty to decide the non-arbitrable claim.”), overruled, Ingold v. AIMCO/Bluffs, LLC
Apts., 159 P.3d 116, 125 (Colo. 2007) (“The intertwining doctrine unreasonably interferes with the parties’
decision to arbitrate their disputes, because it allows the trial court to negate the effect of an arbitration clause
without a statutory basis for doing so”).
193 See, e.g., Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d 898 (5th Cir. 2005); Sedco, Inc. v. Petroleos
Mexicanos Mexican Nat’l Oil Co., 767 F.2d 1140 (5th Cir. 1985); Minn. Supply Co. v. Mitsubishi Caterpillar Fork-
lift Am. Inc., 822 F.Supp.2d 896 (D. Minn. 2011) (FAA’s mandate of enforcement of arbitration agreements re-
quires arbitration even if it results in inefficient piecemeal proceedings in different fora); Wellman, Inc. v. Square
D Co., 620 S.E.2d 86 (S.C. Ct. App. 2005).
194 See §2.01 [A][I]; §8.02[A][I]; §8.02[C].
195 Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (U.S. S.Ct. 1985). See also KPMG LLP v. Cocchi,
565 U.S. 18 (U.S. S.Ct. 2011) (“[The FAA] has been interpreted to require that if a dispute presents multiple
claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal
litigation. … From this it follows that state and federal courts must examine with care the complaints seeking
to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a
blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the
court without arbitration.”).
For an anomalous U.S. lower court decision, in unusual circumstances, staying arbitration of disputes
concededly subject to arbitration, see Oracle Am., Inc. v. Myriad Group AG, 2011 WL 3862027 (N.D. Cal.)
(ordering stay of arbitration of claims subject to arbitration on grounds that there was “some uncertainty” as to
precisely what claims were arbitrable), rev’d, 724 F.3d 1069 (9th Cir. 2013).
196 Baggesen v. Am. Skandia Life Assur. Corp., 235 F.Supp.2d 30 (D. Mass. 2002); Bro Tech Corp. v. Euro. Bank
for Reconstruction & Dev., 2000 U.S. Dist. LEXIS 17049 (E.D. Pa.).
197 See §8.03[C][4]; In re Cotton Yarn Antitrust Litg., 505 F.3d 274, 293 n.12 (4th Cir. 2007); AgGrow Oils,
LLC v. Nat’l Union Fire Ins. Co., 242 F.3d 777 (8th Cir. 2001); Havard v. Offshore Specialty Fabricators, LLC, 2019
WL 6218648, at *3-4 (E.D. La.) (“as a threshold matter[,] … Havard as a nonsignatory is bound by the arbi-
tration agreement between Steamship and OSF”; staying litigation and compelling arbitration); SteppeChange
LLC v. Veon Ltd, 354 F.Supp.3d 1003, 1045 (N.D. Cal. 2018); Jaffe v. Zamora, 57 F.Supp.3d 1244, 1248 (C.D.
Cal. 2014) (“Where some litigants are not parties to the arbitration agreement, the court may nonetheless stay
the entire action if arbitration of claims against a party to an arbitration agreement is likely to resolve factual
1384
Similarly, Australian, Israeli and other national courts have considered arguments that,
where a dispute involves parties that have agreed to arbitrate their claims, as well as additional
parties that have not done so, the entire dispute should be litigated.198 As with U.S. authority,
this position has been rejected in international matters, on the grounds that the New York
Convention applies regardless of arguments of convenience or judicial economy.199 Canadian
courts have adopted the same approach,200 refusing to hear claims, even where the dispute
involved parties not bound by the arbitration agreement or the dispute could affect the rights
of third parties.201 A few national courts have shown reluctance to give effect to arbitration
questions coextensive with claims against nonparties to that arbitration agreement”); Axa Equitable Life Ins. Co.
v. Infinity Fin. Group, LLC, 608 F.Supp.2d 1330 (S.D. Fla. 2009); Sunopta, Inc. v. Abengoa Bioenergy New Techs.,
Inc., 2008 WL 782656 (E.D. Mo.); Filson v. Radio Advertising Mktg Plan, LLC, 553 F.Supp.2d 1074 (D. Minn.
2008); Toledano v. O’Connor, 501 F.Supp.2d 127, 154 (D.D.C. 2007); Geo Vantage of Ohio, LLC v. Geovan-
tage, Inc., 2006 U.S. Dist. LEXIS 63496 (S.D. Ohio); Ballard v. Corinthian Colleges, Inc., 2006 U.S. Dist. LEXIS
57699 (W.D. Wash.); MPA Constr., Inc. v. XL Specialty Ins. Co., 349 F.Supp.2d 934 (D. Md. 2004); Humbarger
v. Law Co., 2002 U.S. Dist. LEXIS 4702 (D. Kan.); Nissan Fire & Marine Ins. Co. v. Fortress Re, Inc., 2002 U.S.
Dist. LEXIS 19542, at *15 (M.D.N.C.) (granting discretionary stay of trial proceedings, but not discovery).
198 Dodwell & Co. v. Moss Sec., XIX Y.B. Comm. Arb. 615 (Australian Fed. Ct. 1990) (1994). See also CTA Int’l
Pty Ltd v. Sichuan Changhong Elec. Co., [2002] VSC 374 (Victoria Sup. Ct.) (granting discretionary stay of all liti-
gation where some or most claims were clearly subject to arbitration); Hotels.com (U.S.) v. Zuz Tourism Ltd, XXXI
Y.B. Comm. Arb. 791, 795 (Israeli S.Ct. 2005) (2006) (“existence [in a national court litigation] of a party who
is not a party to the arbitration agreement, does not make the existing arbitration agreement between the other
parties, whether in whole or in part, null and void, inoperative or an agreement incapable of being performed”).
For an anomalous Australian decision holding that “a court may also exercise a discretion to impose
terms that the arbitration of the arbitrable claims not proceed prior to the determination of the non-arbitrable
claims where the arbitrable claims are seen to be subsidiary to or significantly less substantial than, but overlap-
ping with, the non-arbitrable claims,” see Recyclers of Australia Pty Ltd v. Hettinga Equip. Inc., [2000] FCA 547
(Australian Fed. Ct.).
199 See authorities cited in §2.01[A][1][a]; §5.01[B][2]; §7.03; §8.03[C][1].
200 Fibreco Pulp Inc. v. Star Dover, [1998] FCJ No. 889 (Canadian Fed. Ct. App.); City of Prince George v. A.L.
Sims & Sons Ltd, (1995) WWR 503 (B.C. Ct. App.); BWV Invs. Ltd v. Saskferco Prods. Inc., (1994) 119 DLR4th
577 (Saskatchewan Ct. App.); Kaverit Steel & Crane Ltd v. Kone Corp., (1992) ABCA 7 (Alberta Ct. App.); Can-
ada (AG) v. Marineserve MG Inc., [2002] NSSC 147 (Nova Scotia Sup. Ct.); Boart Sweden AB v. NYA Stromnes
AB, [1988] 41 BLR 295 (Ontario Super. Ct.).
Canadian courts have also held that where the parties have agreed to arbitrate some, but not all, of the
disputes between them, they will stay litigation of all such matters pending outcome of the arbitral proceedings.
Nanisivik Mines Ltd v. F.C.R.S. Shipping Ltd, [1994] 2 FC 662 (Canadian Fed. Ct. App.). See also Comtois Int’l
Exp. Inc. v. Livestock Express BV, [2014] FC 475 (Canadian Fed. Ct.).
201 In one Canadian decision, the court held that arbitration would not be required in a dispute where
some, but not all, parties to a Canadian litigation were subject to an arbitration agreement. The court reasoned,
incorrectly, that “all of these issues will have to be faced again when either party brings its recognition and
enforcement application.” Kaverit Steel & Crane Ltd v. Kone Corp., XVIII Y.B. Comm. Arb. 346, 352 (Alberta
Q.B. 1991) (1993). That decision was reversed on appeal. Kaverit Steel & Crane Ltd v. Kone Corp., XIX Y.B.
Comm. Arb. 643 (Alberta Ct. App. 1992) (1994). See also du Port Ferroviaire de Baie-Comeau – Hauterive v.
Jean Fournier Inc., [2010] QCCA 2161 (Québec Ct. App.) (reversing lower court decision that joined employer
in court proceedings between contractor and sub-contractor, stating that issue of validity of penalty clause
for delays in completion of works contained in contract between employer and contractor should be decided
exclusively by arbitration and that presence of employer as third party in proceedings was not necessary to de-
cide dispute between contractor and sub-contractor); Société de Cogénération de St-Félicien v. Indus. Falmec Inc.,
[2005] QCCA 441 (Québec Ct. App.) (where some parties were bound by arbitration agreement and some
were not, dismissing claim based on lack of valid arbitration agreement between parties involved); Décarel
Inc. v. Concordia Project Mgt Ltd, Case No. J.E. 96-1612 (Québec Ct. App. 1996) (affirming lower court de-
cision which referred to arbitration two companies that were parties to arbitration agreement, as well as two
1385
agreements where litigation involves non-parties as well as parties, but these decisions are
ill-considered and in the minority.202
It is also clear under the Model Law (in Article 8(2)) and other national arbitration leg-
islation that an arbitration may be commenced, and pursued, notwithstanding the prior ini-
tiation of national court litigation. Article 8(2) contradicts the notion of a “first filed” rule of
priority, as applied to parallel litigations and arbitrations, by recognizing the authority of the
arbitral tribunal to continue with the arbitral proceedings, notwithstanding the initiation of
litigation subject to Article 8(2), including litigation raising jurisdictional objections to the
existence, validity, or scope of the arbitration agreement.203
In some jurisdictions, local law places material obstacles in the path of obtaining a stay or
dismissal of litigation based on the parties’ agreement to arbitrate. For example, Spanish legis-
lation provides that a stay of litigation must be requested through the general provisions of the
Spanish Civil Procedure Act. This requires that any jurisdictional objection be made within 10
days – a potentially impossible, and certainly very impractical, time deadline in international
matters.204 This approach vitiates the effect of Article II(3) of the New York Convention and
would contradict its terms and purpose in circumstances where a party’s ability to invoke its
arbitration rights was materially compromised.
[4] Discretionary Stays of Related Litigation

In some legal systems, national courts will stay litigation of issues or disputes that are related
to matters which are properly being arbitrated, even if the litigation is not encompassed (or
necessarily encompassed) by the arbitration agreement. Discretionary stays can be available
in these legal systems in a number of different circumstances.
First, as discussed above, a discretionary stay may be available in the case of jurisdictional
disputes, where some national courts (e.g., United States and England) will stay judicial con-
sideration of such issues for reasons of efficiency even where the parties have not agreed to
arbitrate matters of jurisdiction.205 As also noted above, a roughly comparable approach is
taken under the European Convention, where courts are required in principle to permit initial
arbitral consideration of jurisdictional issues, subject to a discretionary possibility of judicial
resolution of such matters in exceptional circumstances.206
individuals, who were directors and main shareholders of first company, but who were not party to contract;
concluding that dispute between two companies and dispute between two individuals and second company
were so closely related that they could not be decided in separate proceedings); Location Imafa, Sec. v. FedEx
Ground Package Sys. Ltd, [2010] QCCS 2829 (Québec Super. Ct.) (referring parties to arbitration; holding that
only exceptional circumstances can justify decision not to respect parties’ choice of forum and fact that rights
of third parties could be affected by arbitral award is not grounds not to refer parties to arbitration).
For an anomalous decision, in unusual circumstances, see Griffin v. Dell Canada Inc., [2010] 64 BLR4th
199 (Ontario Ct. App.) (in domestic case where 70% of class action claimants were consumers, whose arbitra-
tion agreements were held unenforceable under Consumer Protection Act, 2002, refusing to stay litigation of
claims by remaining 30% of non-consumer claimants on grounds of efficiency).
202 See, e.g., Sopac Italiana SpA v. Bukama GmbH, II Y.B. Comm. Arb. 248 (Milan Tribunale 1976) (1977);
Governors Balloon Safaris Ltd v. Skyship Co. Ltd, Civil Case No. 461/2008 (Nairobi High Ct.).
203 UNCITRAL Model Law, Art. 8(2).
204 Spanish Arbitration Act, Art. 11. See also Cairns, The Spanish Application of the UNCITRAL Model Law
on International Commercial Arbitration, 22 Arb. Int’l 573, 584 (2006); A. López-Ibor, P. Henriquez de Luna &
V. Jover, Arbitration Procedures and Practice in Spain: Overview (2018).
205 See §7.03[E][6]; §7.03[F].
206 See §7.02[A][2]; European Convention, Art. VI(3) (“Where either party to an arbitration agree-
ment has initiated arbitration proceedings before any resort is had to a court, courts of Contracting States
1386
Second, a discretionary stay may be available where the parties to the litigation are not all
parties to the arbitration agreement, but are nonetheless affiliated or contractually connected
with the parties to the arbitration agreement.207 As noted above, U.S. courts in particular have
frequently issued discretionary stays in these circumstances,208 notwithstanding the absence
of express authority to do so under the FAA.209 Courts in other jurisdictions have taken simi-
lar approaches,210 albeit less frequently.
Third, there may be disputes between parties to an arbitration which are not encompassed
by, but are nonetheless related to, a dispute that is subject to the arbitration agreement. Again,
U.S. courts have frequently issued discretionary stays of litigation of such disputes, pending
arbitral resolution of the related dispute.211 Courts in other jurisdiction have also taken this
subsequently asked to deal with the same subject-matter between the same parties … shall stay their ruling on
the arbitrators’ jurisdiction until the arbitral award is made, unless they have good and substantial reasons to
the contrary”).
207 See cases cited §8.03[C][4]. See also Alghanim v. Alghanim, 828 F.Supp.2d 636, 664 (S.D.N.Y. 2011)
(discretionary stay of litigation is usually appropriate where arbitrable and nonarbitrable claims arise out of
same set of facts); AJA Registrars Ltd v. AJA Euro. Ltd [2020] EWHC 883, ¶37 (Ch) (English High Ct.) (order-
ing stay of litigation involving nonparties to avoid parallel proceedings); Fibreco Pulp Inc. v. Star Shipping AS,
[1998] FCJ No. 297 (Canadian Fed. Ct.) (discretionary stay of litigation involving nonparties, for reasons of
judicial economy); Kvaerner Enviropower Inc. v. Tanar Indus. Ltd, (1994) 24 AltaLR3d 365 (Alberta Ct. App.);
Condominiums Mont St.-Sauveur Inc. v. Les Constructions Serge Sauvé ltée., [1990] RJQ 2783 (Québec Ct. App.);
Gorman v. Kosowan, [2016] ONSC 4371 (Ontario Super. Ct.).
208 See, e.g., Hill v. G.E. Power Sys. Inc., 282 F.3d 343, 348 (5th Cir. 2002) (“We have long held that if a suit
against a nonsignatory is based upon the same operative facts and is inherently inseparable from the claims
against a signatory, the trial court has discretion to grant a stay if the suit would undermine the arbitration
proceedings and thwart the federal policy in favor of arbitration”); Am. Home Assur. Co. v. Vecco Concrete Constr.
Co., 629 F.2d 961, 964 (4th Cir. 1980); C. Itoh & Co. v. Jordan Int’l Co., 552 F.2d 1228 (7th Cir. 1977); Sam
Reisfeld & Son Imp. Co. v. SA Eteco, 530 F.2d 679 (5th Cir. 1976); Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir.
1968); Nederlandse Erts-Tankersmaatschappij NV v. Isbrandtsen Co., 339 F.2d 440 (2d Cir. 1964); Haasbroek v.
Princess Cruise Lines, Ltd, 286 F.Supp.3d 1352, 1361 (S.D. Fla. 2017) (quoting Lawson v. Life of the S. Ins. Co., 648
F.3d 1166, 1170 (11th Cir. 2011)) (“a nonparty may force arbitration if the relevant state contract law allows him
to enforce the agreement to arbitrate”); Sharp Corp. v. Hisense USA Corp., 2017 WL 6017897 (N.D. Cal.); Jones
v. Singing River Health Sys., 2016 WL 3351291 (S.D. Miss.); A.O.A. v. Doe Run Res. Corp., 2011 WL 6091724, at
*5 (E.D. Mo.) (“Even if a stay is not mandatory under the theory of direct-benefits estoppel, it could still be
granted as a discretionary matter”); Alghanim v. Alghanim, 828 F.Supp.2d 636 (S.D.N.Y. 2011); Armco Steel Co.
v. CSX Corp., 790 F.Supp. 311 (D.D.C. 1991); Dale Metals Corp. v. Kiwa Chem. Indus. Co., 442 F.Supp. 78, 81-82
(S.D.N.Y. 1977) (stay is appropriate “even though it affects parties who are not bound to arbitrate”). Compare
Am. Shipping Line, Inc. v. Massan Shipping Indus., Inc., 885 F.Supp. 499 (S.D.N.Y. 1995) (refusing to stay litiga-
tion of nonarbitrable claims, on grounds that, although common issues were involved, nonparty to arbitration
would not be bound by award); Montauk Oil Transp. Corp. v. S.S. Mut. Underwriting Ass’n (Bermuda) Ltd, 859
F.Supp. 669 (S.D.N.Y. 1994) (refusing to stay action pending arbitration where action involved nonparty).
209 As U.S. courts have concluded, a stay of litigation under §3 of the FAA can only bind persons that are
party to an arbitration agreement. See IDS Life Ins. Co. v. Sun Am., Inc., 103 F.3d 524, 530 (7th Cir. 1996); Coast-
al (Bermuda) Ltd v. E.W. Saybolt & Co., 761 F.2d 198, 203 (5th Cir. 1985) (“[Section 3] cannot be the source of
the district court’s authority to stay a claim between [nonparties]”).
210 Fibreco Pulp Inc. v. Star Shipping AS, [1998] FCJ No. 297 (Canadian Fed. Ct.); Navionics Inc. v. Flota
Maritima Mexicana SA, [1989] 26 FTR 148 (Canadian Fed. Ct.); Kvaerner Enviropower Inc. v. Tanar Indus. Ltd,
(1994) 24 AltaLR3d 365 (Alberta Ct. App.); Gorman v. Kosowan, [2016] ONSC 4371 (Ontario Super. Ct.);
Danone Asia Pac. Holdings Pte Ltd v. Fonterra Co-operative Group Ltd, [2014] NZHC 1681 (Auckland High Ct.);
On Line Int’l Ltd v. On Line Ltd, [2000] HC Christchurch CP2/00 (Christchurch High Ct.).
211 See, e.g., Rainier DSC v. Rainier Capital Mgt LP, 828 F.3d 356 (5th Cir. 2016) (“It is undisputed that the
only signatories to arbitration agreements with the Investors were some of the Rainier parties, and they pro-
ceeded to arbitration. A stay of the other parties’ litigation was therefore subject to the district court’s discretion
1387
approach, including both Model Law212 and other213 jurisdictions.

In each of these categories of cases, national courts have stayed litigation of disputes that
are not (or are arguably not) subject to arbitration on the grounds that it would be more effi-
cient, fair and supportive of the arbitral process to do so. These courts have not held that a stay
of litigation is mandatory, but rather that granting a stay makes practical sense in particular
circumstances as a matter of discretion and judicial economy. In so doing, these courts have
generally relied upon an inherent judicial power, not granted or required by the New York
Convention or by national legislation that implements the Convention.214
and was only warranted if: (1) the arbitrated and litigated disputes involved the same operative facts; (2) the
claims asserted in the arbitration and litigation were ‘inherently inseparable’; and (3) the litigation had a ‘critical
impact’ on the arbitration.”); Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 257 (5th Cir.
2014) (“whenever the relevant state law would make a contract to arbitrate a particular dispute enforceable
by a nonsignatory, that nonsignatory is entitled to request and obtain a stay under §3 and an order to compel
arbitration under §4 because that dispute is ‘referable to arbitration under an agreement in writing’”) (quoting
Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (U.S. S.Ct. 2009)); Am. Recovery Corp. v. Computerized Thermal
Imaging, 96 F.3d 88 (4th Cir. 1996) (decision to stay nonarbitrable claims is at trial court’s discretion); Collins
Radio Co. v. Ex-Cell-O Corp., 467 F.2d 995, 1000 (8th Cir. 1972) (granting discretionary stay of litigation of two
nonarbitrable claims pending arbitration of related claim); Maritima de Ecologia, SA de CV v. Sealion Shipping
Ltd, 2011 WL 1465744 (S.D.N.Y.) (granting discretionary stay pending arbitration of issues that would have
significant bearing on litigation); Cobra N. Am., LLC v. Cold Cut Sys. Svenska, 639 F.Supp.2d 1217 (D. Colo.
2008) (granting discretionary stay of actions related to ongoing arbitration in Sweden because arbitral tribunal’s
decision would likely be helpful to national court); Chempower, Inc. v. McAlpine, Ltd, 849 F.Supp. 459, 461 (S.D.
W. Va. 1994) (“‘it is true that the arbitrator’s findings will not be binding as to those not parties to the arbitration,
[but] considerations of judicial economy and avoidance of confusion and possible inconsistent results none-
theless militate in favor of granting a stay of the entire action’”) (quoting Am. Home Assur. Co. v. Vecco Concrete
Constr. Co., 629 F.2d 961, 964 (4th Cir. 1980)); Home Life Ins. Co. v. Kaufman, 547 F.Supp. 833, 835 (S.D.N.Y.
1982) (ordering stay of litigation of nonarbitrable issues where: “the party seeking the stay can demonstrate that
he will not hinder the arbitration; that the arbitration will be concluded within a reasonable time; and that the
delay will not work an undue hardship on the party opposing the stay”). But see Armco Steel Co. v. CSX Corp., 790
F.Supp. 311, 316 (D.D.C. 1991) (“presumption that ‘the arbitration and the lawsuit will each proceed in its nor-
mal course’”) (quoting Pensacola Constr. v. St. Paul Fire & Marine Ins. Co., 705 F.Supp. 306, 308 (W.D. La. 1988)).
212 See, e.g., Simmonds Capital Ltd v. Eurocom Int’l Ltd, [1998] 144 FTR 230 (Canadian Fed. Ct.) (confirm-
ing inherent authority to stay claims not subject to arbitration, pending related arbitration, but declining to
exercise power); Cont’l Res. Inc. v. E. Asiatic Co., XX Y.B. Comm. Arb. 278 (Canadian Fed. Ct. 1994) (1995);
Shanghai Constr. (Group) Gen. Co. Singapore Branch v. Tan Poo Seng, [2012] SGHCR 10 (Singapore High Ct.)
(exercising inherent jurisdiction to stay proceedings pending “intended arbitration”); Casaceli v. Natuzzi SpA,
[2012] FCA 691 (Australian Fed. Ct.); Recyclers of Australia Pty Ltd v. Hettinga Equip. Inc. [2000] FCA 547
(Australian Fed. Ct.) (“In the event that a proceeding includes matters that are not capable of being referred to
arbitration, but the determination of which is dependent upon the determination of the matters required to be
submitted to arbitration, a court may, in the exercise of its discretion, stay the whole proceeding”).
213 See, e.g., Judgment of 7 July 1987, 1988 Rev. Arb. 649 (Paris Cour d’Appel) (after court dismissed re-
spondent’s application to annul tribunal’s interim decision on jurisdiction and tribunal declined respondent’s
request to suspend arbitral proceedings pending application, court dismissed subsequent application to simul-
taneously annul interim decision and decision not to suspend arbitral proceedings); E. Gaillard & J. Savage
(eds.), Fouchard Gaillard Goldman on International Commercial Arbitration ¶1659 (1999) (“Paris Court of Ap-
peals was asked to set aside the arbitrators’ decision not to stay proceedings pending the outcome of an action
to set aside their interim award on jurisdiction”).
214 See, e.g., In re Cotton Yarn Antitrust Litg., 505 F.3d 274, 293 n.12 (4th Cir. 2007) (“In some cases … it may
be advisable to stay litigation among the nonarbitrating parties pending the outcome of the arbitration. That
decision is one left to the district court … as a matter of its discretion to control its docket.”) (quoting Moses H.
Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 n.23 (U.S. S.Ct. 1983)); Nat’l Iranian Oil Co. v. Mapco
Int’l, Inc., 983 F.2d 485, 491 (3d Cir. 1992); Webb v. R. Rowland & Co., 800 F.2d 803, 808 (8th Cir. 1986);
1388
Consistent with this, U.S. and other courts have frequently exercised inherent judicial
power to stay actions brought by persons not party to an arbitration agreement, actions in-
volving nonarbitrable claims and actions involving disputes over the existence or validity
of any arbitration agreement.215 This is not, strictly speaking, a direct result of the negative
effects of an arbitration agreement, but can be regarded as an indirect or ancillary result of
the arbitration agreement’s negative obligations, where national courts voluntarily take steps
to rationalize their dockets and enable efficient dispute resolution in light of other arbitrable
mechanisms for resolving disputes.
[5] Non-Recognition of Judgments

If a party pursues litigation in breach of a valid international arbitration agreement (and if
there is no waiver of the right to arbitrate by its counterparty), then the resulting judgment
should not be entitled to recognition.216 Indeed, it would violate the New York Convention for
a Contracting State to recognize and enforce a judgment obtained in breach of a valid agree-
ment to arbitrate, that has not been waived and that is subject to the Convention. Contracting
States are committed under Articles II(1) and II(3) of the Convention to recognizing valid
arbitration agreements and to referring parties to such agreements to arbitration.217 Where a
national court judgment is obtained in breach of an arbitration agreement protected by the
Convention, a Contracting State would violate these commitments by giving effect to that
judgment, rather than ordering the parties to arbitrate their disputes, as they promised to do
and as Article II requires.
The Singapore High Court expressed the foregoing rationale very directly, albeit in a case
involving breach of an antisuit injunction enforcing an arbitration agreement. The Singapor-
ean court reasoned that “if [clause] 19 is an arbitration agreement [as the court concluded it
was], continuation of the proceedings in the Colombo High Court would constitute a breach
by Sri Lanka of her obligations under [Article II of the New York Convention].”218 Thus:
“By virtue of [the parties’ agreement, the respondent] had agreed to submit disputes to
arbitration in Singapore upon election by any party and the plaintiffs have so elected.
In the circumstances it would be manifestly against public policy to give recognition to
Nederlandse Erts-Tankersmaatschappij NV v. Isbrandtsen Co., 339 F.2d 440 (2d Cir. 1964); Banks v. Cotter Corp.,
2019 WL 1426259 (E.D. Mo. 2018) (“‘The decision to grant or deny a stay is within the discretion of a district
court’”) (quoting Webb, 800 F.2d at 808); Phyllis Schlafly Revocable Trust v. Cori, 2017 WL 5478501, at *6 (E.D.
Mo.); AJA Registrars Ltd v. AJA Euro. Ltd [2020] EWHC 883 ¶37 (Ch) (English High Ct.); Fibreco Pulp Inc.
v. Star Shipping AS, [1998] FCJ No. 297 (Canadian Fed. Ct.); Navionics Inc. v. Flota Maritima Mexicana SA,
[1989] 26 FTR 148 (Canadian Fed. Ct.); Kvaerner Enviropower Inc. v. Tanar Indus. Ltd, (1994) 24 AltaLR3d
365 (Alberta Ct. App.); Danone Asia Pac. Holdings Pte Ltd v. Fonterra Co-operative Group Ltd, [2014] NZHC
1681 (Auckland High Ct.) (granting stay of related litigation, not subject to arbitration agreement, because
permitting litigation to proceed would “be oppressive …, unnecessarily duplicative and contrary to the inter-
ests of justice”).
215 See cases cited in §7.03[E][6]; §8.03[C][4].
216 Some national courts have raised this issue without deciding it. See Philip Alexander Sec. & Futures Ltd v.
Bamberger [1996] CLC 1757 (English Ct. App.); Aggeliki Charis Compania Maritime SA v. Pagnan SpA [1995]
1 Lloyd’s Rep. 87, 94 (English Ct. App.).
217 See §1.04[A][1]; §2.01[A][1][a]; §5.01[B][2]; New York Convention, Arts. II(1), (3). See also
§26.05[C][1][a].
218 WSG Nimbus Pte Ltd v. Bd of Control for Cricket in Sri Lanka, [2002] 3 SLR 603, ¶86 (Singapore High
Ct.).
1389
the foreign judgment at the behest of the defendants who have procured it in breach of
an order emanating from this Court.”219
Similarly, Swiss courts have held that they will not recognize foreign judgments that are ob-
tained in an action that breached Article II of the Convention. In one decision, the Swiss Fed-
eral Tribunal refused to annul an arbitral award on the grounds that it allegedly conflicted with
a foreign judgment, reasoning among other things that the foreign judgment had been issued
on the basis of proceedings conducted in breach of a valid arbitration agreement and Article II
of the Convention.220 The court explained:
“A foreign state court which, notwithstanding the presence of the conditions of Art. II
of the [New York] Convention, does not refer the parties to arbitration but takes the
dispute into its own hands lacks thus indirect jurisdiction [necessary for recognition of
a foreign judgment] and its decision cannot be recognized in Switzerland, unless the
lack of jurisdiction of the arbitral tribunal is determined by the tribunal itself or in the
context of a review by a state court.”221
The decision (and similar decisions by the Swiss Federal Tribunal) are discussed in greater
detail below.222
Other national courts have also made it clear that they will not recognize and enforce for-
eign judgments rendered in breach of a valid international arbitration agreement. In particular,
U.S.,223 English224 and French225 courts have refused to recognize foreign judgments made in
219 Id. at ¶65.

220 Judgment of 19 December 1997, Compañia Minera Condesa SA v. BRGM-Pérou sas, DFT 124 III 83, 86-
87 (Swiss Fed. Trib.). See Geisinger & Lévy, Lis Alibi Pendens in International Commercial Arbitration, in ICC,
Complex Arbitrations 53, 56 n.15 (2003); Perret, Parallel Actions Pending Before An Arbitral Tribunal and A State
Court: The Solution Under Swiss Law, in P. Karrer (ed.), Arbitral Tribunals or State Courts: Who Must Defer to
Whom? 65, 70-72 (2001).
221 Judgment of 19 December 1997, Compañia Minera Condesa SA v. BRGM-Pérou SAS, DFT 124 III 83,
86-87 (Swiss Fed. Trib.). The Swiss Federal Tribunal based its ruling on dictum in one of its previous decisions,
holding that the lis pendens provision of Article 9 of the Swiss Law on Private International Law could also be
applied by analogy to arbitral proceedings. Judgment of 20 December 1995, DFT 121 III 495 (Swiss Fed. Trib.).
See §27.02[B][2]. The application of the priority principle under Article 9 to cases of parallel proceedings be-
tween a foreign court and an arbitral tribunal sitting in Switzerland was subsequently confirmed by the Swiss
Federal Tribunal in the Fomento decision. Judgment of 14 May 2001, Fomento de Construcciones y Contratas SA v.
Colon Container Terminal SA, DFT 127 III 279 (Swiss Fed. Trib.). See §27.02[B][2]; §27.03[B][2][d].
222 See §27.02[B][2]; §27.03[B][2][d].
223 Iraq Middle Market Dev. Found. v. Harmoosh, 848 F.3d 235 (4th Cir. 2017) (“[The Maryland Recogni-
tion] Act provides that a court need not recognize a foreign judgment if ‘[t]he proceeding in the foreign court
was contrary to an agreement between the parties under which the dispute was to be settled out of court’”);
Montebueno Mktg, Inc v. Del Monte Corp.-USA, 570 F.App’x 675 (9th Cir. 2014) (“the Philippine litigation that
produced the foreign judgment was ‘contrary to’ an arbitration agreement between Montebueno and Del Mon-
te”); Am. Constr. Mach. & Equip. Corp. v. Mechanised Constr. of Pakistan, Ltd, 828 F.2d 117 (2d Cir. 1987); CBS
Corp. v. WAK Orient Power & Light Ltd, 168 F.Supp.2d 403 (E.D. Pa. 2001) (“WAK’s expressed intention to
attempt to obtain and register in the courts of the [U.S.A.], without leave of this court, a foreign judgment
arising from a subject matter relating to the arbitral award would run afoul of this court’s judgment enforcing
the Arbitral Award as well as the fundamental principles undergirding the Convention”).
224 Tracomin SA v. Sudan Oil Seeds [1983] Lloyd’s Rep. 384 (English Ct. App.); Spliethoff’s Bevrachtingskan-
toor BV v. Bank of China Ltd [2015] EWHC 999, ¶136 (Comm) (English High Ct.) (“Under §32, a foreign
judgment arising out of proceedings brought without agreement and in breach of a jurisdiction or arbitration
clause against a party will not be recognised by the United Kingdom, provided that that party has not counter-
claimed or otherwise submitted to the jurisdiction of the foreign court”). See also English Civil Jurisdiction and
1390
violation of a valid international arbitration agreement.226 225226

It was suggested that EC Regulation 44/2001 did not permit EU Member States to deny
recognition to other Member State judgments, even when obtained in breach of a valid arbi-
tration agreement protected by the New York Convention (and/or the European Conven-
tion). If this argument had been accepted, it would have constituted a grave impediment to
the international arbitral process and a clear violation of Contracting States’ obligations under
Article II of the New York Convention. The argument was correctly rejected both by English
courts and well-reasoned commentary.227
Moreover, EC Regulation 44/2001 was superseded by Regulation (EU) 1215/2012 in
December 2012 (“Recast Regulation”), applicable from 10 January 2015,228 which appears
to preclude a conclusion that EU law generally requires recognition of EU Member State
judgments that violate the New York Convention. Among other things, the Recast Regula-
tion provides that decisions on the existence, validity and scope of international arbitration
agreements do not fall within the scope of the Regulation (including its rules with respect to
jurisdiction, lis pendens and preclusion).229 The Recast Regulation also makes clear that it does
not supersede or alter the obligations of EU Member States under the New York Conven-
tion.230 Under the Recast Regulation (and particularly ¶12 of the Preamble) a Member State
may recognize an arbitral award, under the New York Convention, notwithstanding a decision
by another Member State court holding that there was no valid arbitration agreement.231
Judgments Act, 1982, §32.

225 See, e.g., Judgment of 15 June 2006, Legal Dep’t of Iraqi Ministry of Justice v. Sté Fincantieri Cantieri Navali
Italiani, 2007 Rev. Arb. 87, 89-90 (Paris Cour d’Appel) (refusing to enforce judgment of Italian court that
exercised jurisdiction despite arbitration clause that was not manifestly null and void or incapable of being
performed). See also Judgment of 15 June 2006, 2007 Rev. Arb. 90, 94 (Paris Cour d’Appel), Note, Bollée;
Debourg, Imbroglio d’Outils de Résolution des Inconciliabilités de Décisions: Ordre Public International, Autorité de
Chose Transigée et Perte de Fondement Juridique, 2013 Rev. Arb. 420, 432. But see Judgment of 28 March 2013, Sté
Emirates Telecommc’ns Corp. v. Sté Planor Afrique, 2013 Rev. Arb. 411, 415 (French Cour de Cassation) (refusing
to consider arbitration agreement in determining enforceability of Burkinabe judgments rendered in alleged
violation of arbitration agreement).
226 German courts do not seem to have taken a uniform approach on this issue. Compare Judgment of 25
March 1987, 1988 NJW 653 (Oberlandesgericht Hamm) (denying enforcement because debtor had raised
valid arbitration agreement as defense in foreign court proceedings) with Judgment of 29 January 1986, 5 O
203/82 (Landgericht Essen) (leaving open question whether foreign judgment in breach of valid arbitration
agreement can be enforced).
227 See, e.g., Through Transp. Mut. Ins. Ass’n (Eurasia) Ltd v. New India Assur. Ass’n Co. [2004] EWCA Civ
1598 (English Ct. App.); Aggeliki Charis Compania Maritima SA v. Pagnan SpA [1995] 1 Lloyd’s Rep. 87, 94
(English Ct. App.); L. Collins et al. (eds.), Dicey, Morris and Collins on The Conflict of Laws ¶16-093 (15th ed.
2012 & Update 2018).
228 EU Regulation No. 1215/2012.
229 Id. at Preamble ¶12 (“A ruling given by a court of a Member State as to whether or not an arbitration
agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of
recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a
principal issue or as an incidental question”).
230 Id. (“Nothing in this Regulation should prevent the courts of a Member State, when seised of an action
in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties
to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agree-
ment is null and void, inoperative or incapable of being performed, in accordance with their national law”); id.
at Art. 73(2) (“This Regulation shall not affect the application of the 1958 New York Convention”).
231 Camilleri, Recital 12 of the Recast Regulation: A New Hope?, 62 Int’l & Comp. L.Q. 899, 908 (2013)
(concluding that Recast Regulation does not require arbitral tribunal seated in Member State to give effect to
judgment of another Member State regarding validity of arbitration agreement: “the very fact that [¶]12 states
1391
Nonetheless, while the Recast Regulation provides that the New York Convention takes
precedence over the Regulation,232 it does not expressly address the question whether a Mem-
ber State court would be required to recognize the judgment of another Member State court
on the substance of the parties’ dispute, notwithstanding the existence of a valid arbitration
agreement covering the issue in dispute. The better view is that the Recast Regulation would
allow the judgment of an EU Member State court (in violation of the New York Convention)
to be denied recognition by another EU Member State court, as the Convention would obli-
gate it to do.233
[6] Antisuit Injunctions234

As noted above, a party’s ability to obtain a stay of litigation is not always sufficient to effec-
tively enforce an arbitration agreement in the international context.235 That is because a party
may be able to pursue litigation of the underlying dispute in a national court which does not
honor, or fully honor, its international obligations under the New York Convention.236 In that
event, a stay of the underlying litigation in one (or several) national courts, which do honor
the Convention, may be only a partial, and ultimately ineffective, remedy for enforcing the
international arbitration agreement.
Accordingly, some states permit additional means of enforcement of the negative obli-
gation to refrain from litigating disputes that are subject to arbitration. These remedies are
ordinarily available only in common law jurisdictions, where national courts may be prepared
to issue “antisuit injunctions” to prohibit the filing or prosecution of litigation in a foreign
forum.237 Antisuit orders are directed against the parties to a foreign litigation (and not the
that the determination of a Member State court that an arbitration agreement is invalid is not a judgment which
is subject to the [Regulation’s] recognition and enforcement regime means that it is not one, under English
conflict of laws rules, which the arbitral tribunal must recognize”).
232 See EU Regulation No. 1215/2012, Preamble, ¶12 & Art. 73(2).
233 Camilleri, Recital 12 of the Recast Regulation: A New Hope?, 62 Int’l & Comp. L.Q. 899, 909-10 (2013)
(concluding that Recast Regulation does not require EU Member State courts to recognize “substantive judg-
ment” on merits of parties’ dispute by another Member State court where recognition court concludes that
foreign arbitral award on same issues was entitled to recognition under New York Convention).
234 For commentary, see Ali et al., Anti-Suit Injunctions in Support of International Arbitration in the United
States and United Kingdom, 1 Int’l Arb. L. Rev. 12 (2008); Baltag, Anti-Suit Injunctions and Other Means of
Indirect Enforcement of an Arbitration Agreement, in S. Brekoulakis et al. (eds.), The Evolution and Future of Inter-
national Arbitration 251 (2016); Bédard, Anti-Suit Injunctions in International Arbitration, in L. Shore et al. (eds.),
International Arbitration in the United States 289 (2017); Bédard & Mascarenhas, Comverse, Inc.: Methodolog-
ical Issues in Anti-Suit Injunctions, 22(2) Mealey’s Int’l Arb. Rep. 29 (2007); Bermann, The Use of Anti-Suit In-
junctions in International Litigation, 28 Colum. J. Transnat’l L. 589 (1990); Collins, Anti-Suit Injunctions and the
Arbitration Process, in P. Karrer (ed.), Arbitral Tribunals or State Courts: Who Must Defer to Whom? 85 (2001);
Davies & Kirsey, Anti-Suit Injunctions in Support of London Seated Arbitrations Post-Brexit: Are All Things New
Just Well-Forgotten Past?, 33 J. Int’l Arb. 501 (2016); E. Gaillard (ed.), Anti-Suit Injunctions in International Ar-
bitration (2005); Hascher, Injunctions in Favor of and Against Arbitration, 21 Am. Rev. Int’l Arb. 189 (2010);
Phull, U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask, 28 J.
Int’l Arb. 21 (2011); Smith & Freeman, Anti-Suit Injunctions in Europe: Another Advantage of Arbitration, 20(3)
Mealey’s Int’l Arb. Rep. 45 (2005); Stacher, You Don’t Want to Go There: Antisuit Injunctions in International
Commercial Arbitration, 23 ASA Bull. 640 (2005); Tan, Enforcing International Arbitration Agreement in Federal
Courts: Rethinking the Court’s Remedial Powers, 47 Va. J. Int’l L. 545 (2007); Vishnevskaya, Anti-Suit Injunctions
from Arbitral Tribunals in International Commercial Arbitration: A Necessary Evil?, 32 J. Int’l Arb. 173 (2015).
235 See §8.02[C].
236 See §5.01[C][6].
237 See generally G. Born & P. Rutledge, International Civil Litigation in United States Courts 551 et seq. (6th
1392
foreign court itself), but are intended to have the effect of precluding the litigation from pro-
ceeding in the foreign court.238
[a] Antisuit Injunctions Under English Law

English courts have long exercised the power to enjoin foreign litigations which are brought
in violation of an arbitration agreement.239 Under English law, an antisuit injunction may or-
dinarily be granted against the prosecution of a foreign litigation if it is established that (a) the
English forum has a sufficient interest in, or connection with, the matter in question, (b) the
foreign proceeding causes sufficient prejudice to the applicant, and (c) the antisuit injunction
would not unjustly deprive the claimant in the foreign court of a legitimate advantage.240 One
English court decision affirmed the existence of this power in emphatic terms, in the context
of a foreign litigation brought in breach of an arbitration agreement, reasoning:
“[I]n my judgment there is no good reason for diffidence in granting an injunction
to restrain foreign proceedings [brought in violation of an arbitration agreement] on
the clear and simple ground that the defendant has promised not to bring them. … I
cannot accept the proposition that any Court would be offended by the grant of an
injunction to restrain a party from invoking a jurisdiction which he had promised not
to invoke and which it was its own duty to decline.”241
ed. 2018); L. Collins et al. (eds.), Dicey, Morris and Collins on The Conflict of Laws ¶¶12-078 to 093 (15th ed.
2012 & Update 2018). The standards for obtaining an antisuit injunction vary from jurisdiction to jurisdiction,
but typically require a showing of an identity of parties and issues, in the domestic and foreign forums, together
with some showing of oppression, violation of public policy, or the like. Id.
238 G. Born & P. Rutledge, International Civil Litigation in United States Courts 567 (6th ed. 2018). Arbitral
tribunals also occasionally issue antisuit injunctions. See §17.02[G][4][j].
35, ¶21 (U.K. S.Ct.); Enka Insaat ve Sanayi v. OOO Ins. Co. Chubb [2020] EWCA Civ 574 (English Ct. App.);
Tracomin SA v. Sudan Oil Seeds Co [1983] 3 All ER 140 (English Ct. App.); Pena Copper Mines Ltd v. Rio Tinto
Co. [1911-13] All ER 209, 212 (English Ct. App.) (enjoining English party not to proceed with suit in Spain
against Belgian party in violation of arbitration agreement: “It is beyond all doubt that this Court has juris-
diction to restrain the Rio Tinto Co. from commencing or continuing proceedings in a foreign court if those
proceedings are in breach of contract”); Daiichi Chuo Kisen Kaisha v. Chubb Seguros Brasil [2020] EWHC 1223
(Comm) (English High Ct.); Daiichi Chuo Kisen Kaisha v. Chubb Seguros Brasil [2020] EWHC 1223 (Comm)
(English High Ct.); Seniority Shipping v. City Seed Crushing Indus., [2019] EWHC 3541 (Comm) (English High
Ct.); HC Trading Malta v. Tradeland Commodities SL [2016] EWHC 1279, ¶25 (Comm) (English High Ct.).
See also Collins, Anti-Suit Injunctions and the Arbitration Process, in P. Karrer (ed.), Arbitral Tribunals or State
Courts: Who Must Defer to Whom? 85 (2001).
240 See Airbus Indus. GIE v. Patel [1998] 1 Lloyd’s Rep. 631 (House of Lords). Moreover, the party that
brings a claim in a non-contractual forum has the burden to prove that it has “strong reasons” for doing so.
Donohue v. Armco Inc. [2001] UKHL 64 (House of Lords).
241 Aggeliki Charis Compania Maritima SA v. Pagnan SpA [1995] 1 Lloyd’s Rep. 87, 96 (English Ct. App.).
See also Sulamérica Cia Nacional De Seguros SA v. Enesa Engenharia SA [2012] EWCA Civ 638 (English Ct.
App.) (injunction restraining Brazilian litigation based on English arbitration agreement); AES Ust-Kameno-
gorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA 647 (English Ct. App.)
(injunction restraining Kazakhstan litigation based on English arbitration agreement), aff’d, [2013] UKSC 35,
¶23 (U.K. S.Ct.) (“Both prior to the Arbitration Act 1996 and indeed subsequently – until the present case –
the negative aspect was well recognised, and it was well established that the English courts would give effect to
it, where necessary by injuncting foreign proceedings brought in breach of either an arbitration agreement or
an exclusive choice of court clause. Further, such relief was treated as the counterpart of the statutory power
to grant a stay of domestic proceedings to give effect to an arbitration agreement.”); Midgulf Int’l Ltd v. Groupe
Chimiche Tunisien [2010] EWCA Civ 66 (English Ct. App.) (issuing antisuit injunction against proceedings
1393
In a recent case, an English court issued an injunction where the existence of the underly-
ing agreement containing the arbitration clause was disputed. English courts have also given
consideration to notions of comity, as justifying the withholding of an antisuit injunction
against parties to a foreign litigation.242
Nonetheless, as a matter of principle, proceedings resulting from a party’s unexcused
breach of its negative obligation not to litigate a dispute that is encompassed by a valid arbitra-
tion agreement are subject, under English law, to an antisuit injunction.243 As the UK Supreme
Court reasoned in Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower
Plant JSC:
“[O]rders restraining the actual or threatened breach of the negative aspect of an arbi-
tration agreement may be required both where no arbitration proceedings are on foot
or proposed, and where the case is not one of urgency (and so not within §44(3)).
They enforce the negative right not to be vexed by foreign proceedings.”244
in Tunisia); Aline Tramp SA v. Jordan Int’l Ins. Co. [2016] EWHC 1317 (Comm) (English High Ct.); Ecom
Agroindustrial Corp. Ltd v. Mosharaf Composite Textile Mill Ltd [2013] EWHC 1276 (Comm) (English High
Ct.) (“Where foreign proceedings are brought in breach of an arbitration clause, the court will ‘ordinarily’ grant
an anti-suit injunction to restrain those proceedings unless there are ‘strong reasons’ not to do so. The burden
of proof is on the party in breach of the arbitration clause.”); Starlight Shipping Co. v. Tai Ping Ins. Co. [2007]
EWHC 1893 (QB) (English High Ct.) (issuing antisuit injunction to prevent litigation of merits of dispute
in Chinese courts before jurisdictional challenges could be considered by arbitral tribunal in English-seated
arbitration); C v. D [2007] EWHC 1541, ¶53 (Comm) (English High Ct.) (issuing antisuit injunction against
action in U.S. courts to annul award made in England, where insurance policy was governed by New York law
but disputes were to be “finally and fully determined in London, England under the provisions of the English
Arbitration Act”; no right to seek to annul award in New York: “Such a challenge usurps the function of the
English court which has power to grant injunctions to protect its own jurisdiction and the integrity of the
arbitration process. In such a case there is an infringement of the legal right of [the Claimant] (both contrac-
tual and statutory rights) under English law and an abuse of the process of this court in the usurpation of its
exclusive jurisdiction to supervise arbitrations with their seat in this country.”); Elektrim SA v. Vivendi Universal
SA [2007] EWHC 571, ¶52 (Comm) (English High Ct.) (“court has jurisdiction … to grant an injunction to
restrain a party from engaging in court proceedings in another jurisdiction, in breach of an English arbitration
clause”); XL Ins. Ltd v. Owens Corning [2000] 2 Lloyd’s Rep. 500 (QB) (English High Ct.); Toepfer Int’l GmbH
v. Societe Cargill France [1997] 2 Lloyd’s Rep. 98 (QB) (English High Ct.).
242 World Pride Shipping Ltd v. Daiichi Chuo Kisen Kaisha [1984] 2 Lloyd’s Rep. 489, 498 (QB) (English
High Ct.) (“[T]he American court has not yet ruled on the joint motion for continuance [of litigation]. … [I]t
would be much better that the [U.S.] District Court should itself rule on the motion for continuance and, if it
thinks fit, stay all further proceedings on [the counterclaim] … rather than I should seek to preempt, and per-
haps even seem to dictate the decision of a foreign Court.”); L. Collins et al. (eds.), Dicey, Morris and Collins on
The Conflict of Laws ¶12-083 (15th ed. 2012 & Update 2018). See also A v. OOO “Ins. Co. Chubb” [2019] EWHC
2729 (Comm) (English High Ct.) (refusing to grant interim injunctive relief requiring party to withdraw claim
and stay proceedings in Russia), rev’d, Enka Insaat ve Sanayi v. OOO Ins. Co. Chubb [2020] EWCA Civ 574
(English Ct. App.); U&M Mining Zambia Ltd v. Konkola Copper Mines plc [2013] EWHC 260 (Comm) (En-
glish High Ct.) (refusing to issue antisuit injunction to restrain action in Zambian courts for interim relief,
notwithstanding existence of English arbitration).
243 See, e.g., Welex AG v. Rosa Maritime Ltd [2003] 2 Lloyd’s Rep. 509, ¶48 (English Ct. App.) (“party suing
in the non-contractual forum must show strong reasons for [breaching the arbitration agreement] or he faces
the prospect of an injunction being granted against him”) (quoting Donohue v. Armco Inc. [2001] UKHL 64,
¶24 (House of Lords)); §8.03[C][6][a].
35, ¶46 (U.K. S.Ct.).
1394
As discussed below, however, within the European Union, where EC Regulation 44/2001
(and now the Recast Regulation) applies, the English courts’ historic antisuit authority may
not be exercised as to proceedings in other EU Member State courts.245 As with many other
issues, it is not clear what impact Brexit will have on the availability of antisuit injunctions in
English courts.246
In England, most antisuit injunctions have been issued to prevent the litigation of claims
that are properly subject to arbitration. Nonetheless, an English court issued an injunction
against an award-debtor’s pursuit of foreign litigation aimed at challenging an English arbi-
tral award.247 In a recent case, an English court issued an injunction where the existence of
the underlying agreement containing the arbitration clause was disputed.248 English courts
have also issued antisuit injunctions against a third party to the arbitration proceedings (re-
flecting, as discussed above, the scope of the negative obligations arising from an arbitration
agreement).249 It is clear that English courts will issue injunctions against commencement of
foreign court proceedings regardless whether or not an arbitration has been initiated.250
[b] Antisuit Injunctions in Other Common Law Jurisdictions

Courts in other common law jurisdictions, including Singapore, Canada, Bermuda, Hong
Kong, South Africa and Australia, have also issued antisuit injunctions to enforce the negative
obligations of an arbitration agreement.251 The Singapore High Court explained the rationale
for antisuit orders as follows:
245 See §8.03[C][6][e].

246 See Davies & Kirsey, Anti-Suit Injunctions in Support of London Seated Arbitrations Post-Brexit: Are All
Things New Just Well-Forgotten Past?, 33 J. Int’l Arb. 501 (2016).
247 C v. D [2007] EWHC 1541 (Comm) (English High Ct.).
248 Times Trading Corp. v. Nat’l Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm) (English
High Ct.).
249 Joint Stock Asset Mgt Co. Ingosstrakh-Invs. v. BNP Paribas SA [2012] EWCA Civ 644 (English Ct. App.).
A recent English decision refused to extend an interim anti-suit injunction against a non-party to arbitration
agreement, holding that the foreign court was “the proper and natural forum” for that party’s claims. See Evison
Holdings Ltd v. Int’l Co. Finvision Holdings [2019] EWHC 3057 (Comm) (English High Ct.).
35, ¶48 (U.K. S.Ct.) (“Where an injunction is sought to restrain foreign proceedings in breach of an arbitration
agreement – whether on an interim or a final basis and whether at a time when arbitral proceedings are or are
not on foot or proposed – the source of the power to grant such an injunction is to be found not in §44 of
the 1996 Act, but in §37 of the 1981 [Senior Courts] Act. Such an injunction is not ‘for the purposes of and
in relation to arbitral proceedings’, but for the purposes of and in relation to the negative promise contained
in the arbitration agreement not to bring foreign proceedings, which applies and is enforceable regardless of
whether or not arbitral proceedings are on foot or proposed.”). See also SAS Institute Inc. v. World Programming
Ltd [2020] EWCA Civ 599 (English Ct. App.) (issuing anti-enforcement injunction against U.S. judgment
which included judgment concerning debts due from customers to counterparty, where counterparty and its
customers had agreed to submit their disputes to arbitration seated in London).
251 See BC Andaman Co v. Xie Ning Yun, [2017] SGHC 64, ¶62 (Singapore High Ct.) (“such injunctions
could be granted on another ground, viz, to protect the substantive contractual rights … to enforce the arbitra-
tion agreements”); WSG Nimbus Pte Ltd v. Bd of Control for Cricket in Sri Lanka, [2002] 3 SLR 603 (Singapore
High Ct.); Arjowiggins HKK2 Ltd v. Shandong Chenming Paper Holdings Ltd, [2018] HKCFI 93, ¶29 (H.K. Ct.
First Inst) (“The grant of an injunction is an exercise of the Court’s discretionary powers. … [T]he Respon-
dent has at the same time displayed complete disrespect for the arbitration agreement and the arbitral process
to which it had voluntarily agreed.”); Ever Judger Holding Co. v. Kroman Celik Sanayii Anonim Sirketi, [2015]
HKCFI 602, ¶45 (H.K. Ct. First Inst.) (“the court in this jurisdiction should ordinarily grant an injunction to
restrain the pursuit of foreign proceedings brought in breach of an agreement for Hong Kong arbitration, at any
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“[An antisuit injunction] is entirely consistent with the principle that parties be made
to abide by their agreement to arbitrate. Furthermore, the New York Arbitration Con-
vention obliges state parties to uphold arbitration agreements and awards. Such an
agreement is often contravened by a party commencing an action in its home courts.
Once this Court is satisfied that there is an arbitration agreement, it has a duty to up-
hold that agreement and prevent any breach of it.”252
As in England, this analysis is likely to result in the issuance of an antisuit injunction restraining
pursuit of foreign litigation simply upon the showing that a party has commenced litigation
in breach of a valid, applicable arbitration agreement. The Singaporean approach forthrightly
holds parties to their commitments to arbitrate, and rests on the obligation, under the New
York Convention, of Contracting States to recognize and enforce arbitration agreements.253
Parenthetically, the willingness of many common law jurisdictions to issue antisuit injunc-
tions to enforce the negative obligations of an arbitration agreement stands in some tension
with the refusal of these jurisdictions to issue orders compelling arbitration. A substantial
argument can be made that antisuit injunctions, which interfere more directly with foreign
courts’ jurisdiction, should be more (not less) difficult to obtain than orders compelling ar-
bitration – yet, as discussed above,254 the former are more readily available than the latter in
many jurisdictions.
[c] Antisuit Injunctions Under U.S. Law

U.S. courts have also been prepared to grant antisuit injunctions prohibiting parties from pro-
ceeding with foreign litigation in violation of a valid international arbitration agreement, but
subject to significantly more demanding conditions and restrictions than in England, Singa-
pore and most other common law jurisdictions. In general, U.S. courts have been reluctant to
grant antisuit injunctions, even where parties have commenced foreign litigation in violation
of their agreement to arbitrate, except in compelling cases where there is a special need for
such relief.
Preliminarily, there is no question but that U.S. courts have the authority to enjoin par-
ties from proceeding with foreign litigation of disputes that are subject to arbitration. In one
court’s words, “[t]he power of federal courts to enjoin foreign suits in favor of arbitration is …
well-established.”255 Exercising this authority, U.S. courts have not infrequently issued antisuit
rate where the injunction has been sought without delay and the foreign proceedings are not too far advanced,
unless the defendant can demonstrate strong reason to the contrary”); Skandia Int’l Ins. Co. v. Al Amana Ins.
& Reins. Co., XXIV Y.B. Comm. Arb. 615, 615 (Bermuda S.Ct. 1994) (1999) (“this Court has jurisdiction to
restrain foreign legal proceedings brought in breach of an arbitration agreement”); Vedanta Res. Holdings Ltd v.
ZCCM Inv. Holdings plc, [2019] ZAGPJHC 250 (S. Gauteng High Ct.) (“If a party to an arbitration agreement
seeks to litigate a dispute to which the agreement relates in a court outside the country of the seat of arbitration
… his opposing party may seek an injunction to restrain him from bringing or continuing that suit”).
252 WSG Nimbus Pte Ltd v. Bd of Control for Cricket in Sri Lanka, [2002] 3 SLR 603, ¶91 (Singapore High
Ct.). See also Tjong Very Sumito v. Antig Invs. Pte Ltd, [2009] SGCA 41 (Singapore Ct. App.).
253 The Singaporean approach rests on the view that the New York Convention affirmatively obligates states
to enjoin litigations brought in violation of valid arbitration agreements, referring to “a duty to uphold [such]
agreement[s].” WSG Nimbus Pte Ltd, [2002] 3 SLR 603, ¶91 (Singapore High Ct.).
254 See §8.02[C].
255 Amaprop Ltd v. Indiabulls Fin. Servs. Ltd, 2010 WL 1050988, at *4 (S.D.N.Y.). See also Restatement of the
U.S. Law of International Commercial and Investor-State Arbitration §2.29(d)(i) & Reporters’ Note c(ii) (2019).
1396
injunctions directing parties not to proceed with litigation in a foreign court in violation of an
arbitration agreement.256
The preliminary requirements that must be satisfied in order to obtain an antisuit injunc-
tion from a U.S. court are demonstrating that: (a) the underlying arbitration agreement is
valid,257 (b) the parties to the foreign litigation are the same as those bound by the arbitration
agreement,258 and (c) the disputes at issue in the foreign litigation would be resolved by the
arbitration.259 In addition, consistent with general U.S. law on equitable relief, U.S. courts have
also typically required additional showings of (d) irreparable injury or grave hardship to the
256 See, e.g., Microsoft Corp. v. Motorola Inc., 696 F.3d 872 (9th Cir. 2012); LAIF X SPRL v. Axtel, SA de CV,
390 F.3d 194 (2d Cir. 2004); Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645 (2d Cir. 2004) (“It is beyond question that a federal court may enjoin a party before it from pursuing
litigation in a foreign forum.”); Espiritu Santo Holdings, LP v. L1bero Partners, LP, 2019 WL 2240204 (S.D.N.Y.);
Keep on Kicking Music, Ltd v. Hibbert, 268 F.Supp.3d 585 (S.D.N.Y. 2017); BAE Sys. Tech. Sol. & Servs., Inc. v.
Korea’s Def. Acquisition Program Admin., 195 F.Supp.3d 776, 803 (D. Md. 2016); APR Energy, LLC v. First Inv.
Group Corp., 88 F.Supp.3d 1300 (M.D. Fla. 2015); Travelport Global Distrib. Sys. BV v. Bellview Airlines Ltd, 2012
WL 3925856 (S.D.N.Y.); Stolt Tankers BV v. Allianz Seguros, SA, 2011 WL 2436662 (S.D.N.Y.); Amaprop Ltd
v. Indiabulls Fin. Servs. Ltd, 2010 WL 1050988 (S.D.N.Y.) (granting antisuit injunction and motion to compel
arbitration where respondent had procured ex parte orders enjoining arbitration in its home courts in India,
which was not arbitral seat); Affymax, Inc. v. Johnson & Johnson, 420 F.Supp.2d 876 (N.D. Ill. 2006); SG Avi-
pro Fin. Ltd v. Cameroon Airlines, 2005 U.S. Dist. LEXIS 11117 (S.D.N.Y.); Empresa Generadora de Electricidad
ITABO, SA v. Corporación Dominicana de Empresas Eléctricas Estatales, 2005 WL 1705080 (S.D.N.Y.); Ibeto
Petrochemical Indus., Ltd v. M/T Beffen, 412 F.Supp.2d 285 (S.D.N.Y. 2005). See also Bedard & Mascarenhas,
Comverse, Inc.: Methodological Issues in Anti-Suit Injunctions, 22(2) Mealey’s Int’l Arb. Rep. 29 (2007); Restate-
ment of the U.S. Law of International Commercial and Investor-State Arbitration §2.29 (2019) (antisuit injunction
in aid of arbitration).
257 Restatement of the U.S. Law of International Commercial and Investor-State Arbitration §2.29(a) & com-
ment b (2019).
258 Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir.
2004). See also Answers in Genesis of Ky. Inc. v. Creation Ministries, 556 F.3d 459, 471 (6th Cir. 2009) (deter-
mination to order antisuit injunction should depend on whether “an injunction is necessary to protect the
jurisdiction of a federal court or if allowing the foreign litigation to continue would allow a party ‘to evade the
forum’s important policies’”) (quoting Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1355-57 (6th Cir.
1992)); China Trade & Dev. Corp. v. MV Choong Yong, 837 F.2d 33, 35 (2d Cir. 1987) (agreeing with general
approach of first “inquiring (1) whether the parties to both suits are the same and (2) whether resolution of
the case before the enjoining court would be dispositive of the enjoined action”); Alstom Chile SA v. Mapfre
Compania de Seguros Generales Chile SA, 2013 WL 5863547, at *3 (S.D.N.Y.); Travelport Global Distrib. Sys., BV
v. Bellview Airlines, Ltd, 2012 WL 3925856, at *6 (S.D.N.Y.).
259 Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir.
2004). See also Answers in Genesis of Ky. Inc. v. Creation Ministries, 556 F.3d 459, 471 (6th Cir. 2009) (determina-
tion to order antisuit injunction should depend on whether “an injunction is necessary to protect the jurisdic-
tion of a federal court or if allowing the foreign litigation to continue would allow a party ‘to evade the forum’s
important policies’”) (quoting Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1355-57 (6th Cir. 1992));
China Trade & Dev. Corp. v. MV Choong Yong, 837 F.2d 33, 35 (2d Cir. 1987) (agreeing with general approach
of first “inquiring (1) whether the parties to both suits are the same and (2) whether resolution of the case
before the enjoining court would be dispositive of the enjoined action”); Espiritu Santo Holdings, LP v. L1bero
Partners, LP, 2019 WL 2240204 (S.D.N.Y.); Eastman Kodak v. Asia Optical, 118 F.Supp.3d 581 (S.D.N.Y. 2015).
See generally Phull, U.S. Anti-Suit Injunctions in Support of International Arbitration: Five Questions American
Courts Ask, 28 J. Int’l Arb. 21 (2011); Restatement of U.S. Law of International Commercial and Investor-State Ar-
bitration §2.29(a)-(c) & comment b (2019) (conditions for antisuit injunction in aid of arbitration). Compare
Restatement of U.S. Law of International Commercial and Investor-State Arbitration §2.29(c) & Reporters’
Note b(iii) (2019) (“claims within scope of international arbitration agreement).
1397
party seeking relief,260 and (e) evidence that the (U.S.) forum’s public policy warrants a grant
of injunctive relief.261
Applying these general principles, U.S. lower courts have formulated a variety of different
standards for when an antisuit injunction may be granted to restrain foreign litigation. Some
U.S. courts grant such relief based merely upon a showing of serious inconvenience or risk of
inconsistent judgments,262 while others are more demanding and require a clear showing that
the foreign litigation would threaten the jurisdiction or public policies of the U.S. forum.263
260 See, e.g., E. & J. Gallo Winery v. Andina Licores, SA, 446 F.3d 984, 991 (9th Cir. 2006); Quaak v. Klynveld
Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004); Sony Corp v. Fujifilm Holdings Corp., 2017
WL 4342126, at *5 n.6 (S.D.N.Y.) (“traditional requirements for issuance of a preliminary injunction”); Bailey
Shipping Ltd v. Am. Bureau of Shipping, 2013 WL 5312540, at *10-13 (S.D.N.Y.) (“ordinary test for a prelimi-
nary injunction”). These decisions make clear that satisfying traditional requirements for preliminary relief
are generally a necessary, but not sufficient, requirement for obtaining an antisuit injunction. Empresa Genera-
dora de Electricidad ITABO, SA v. Corporación Dominicana de Empresas Eléctricas Estatales, 2005 WL 1705080
(S.D.N.Y.).
261 LAIF X SPRL v. Axtel, SA de CV, 390 F.3d 194 (2d Cir. 2004); Paramedics Electromedicina, 369 F.3d
at 654; Leong v. Goldman Sachs Group Inc., 2016 WL 1736164 (S.D.N.Y.) (“in light of the ‘liberal federal poli-
cy favoring arbitration agreements,’ the public interest is served by enforcing parties’ agreements to arbitrate
according to their terms”) (quoting E.E.O.C. v. Waffle House, 534 U.S. 289 (U.S. S.Ct. 2002)); APR Energy,
LLC v. First Inv. Group Corp., 88 F.Supp.3d 1300 (M.D. Fla. 2015) (“where a party initiates a foreign suit in ‘an
attempt to sidestep arbitration,’ an anti-suit injunction may be particularly appropriate ‘given the federal policy
favoring liberal enforcement of arbitration clauses’”) (quoting Alstom Chile SA v. Mapfre Compania De Seguros
Generales Chile SA, 2013 WL 5863547, at *4 (S.D.N.Y.)); Midmark Corp. v. Janak Healthcare Private Ltd, 2014
WL 2737996 (S.D. Ohio) (“The public interest will be served by the injunction”); Stolt Tankers BV v. Allianz
Seguros, SA, 2011 WL 2436662, at *5 (S.D.N.Y.) (granting antisuit injunction where foreign litigation would
“frustrate the general federal policy of promoting arbitration,” foreign court would not apply the Carriage of
Goods by Sea Act, so that the outcomes “could be inconsistent,” and “adjudication of the same issues in two
separate actions would result in inconvenience, inconsistency, and a possible race to judgment”); Ibeto Petro-
chemical Indus., Ltd v. M/T Beffen, 412 F.Supp.2d 285 (S.D.N.Y. 2005).
262 See, e.g., E. & J. Gallo Winery v. Andina Licores SA, 446 F.3d 984 (9th Cir. 2006); Karaha Bodas Co. v. Pe-
rusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357 (5th Cir. 2003); MacPhail v. Oceaneering
Int’l, Inc., 302 F.3d 274 (5th Cir. 2002); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996); Philips Med.
Sys. Int’l BV v. Bruetman, 8 F.3d 600 (7th Cir. 1993); Allendale Mutual Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425
(7th Cir. 1993) (“The only concern with international comity is a purely theoretical one that ought not trump
a concrete and persuasive demonstration of harm to the applicant for the injunction, if it is denied, not offset
by any harm to the opponent if it is granted”); Seattle Totems Hockey Club, Inc. v. Nat’l Hockey League, 652 F.2d
852 (9th Cir. 1981); Cargill, Inc. v. Hartford Accident & Indem. Co., 531 F.Supp. 710 (D. Minn. 1982).
263 See, e.g., Answers in Genesis of Ky. Inc. v. Creation Ministries, 556 F.3d 459, 471 (6th Cir. 2009); Goss
Int’l Corp. v. Man Roland Druckmaschinen AG, 491 F.3d 355 (8th Cir. 2007); Quaak v. Klynveld Peat Marwick
Goerdeler Bedrijfsrevisoren, 361 F.3d 11 (1st Cir. 2004); Stonington Partners v. Lernout & Hauspie Speech Prods.
NV, 310 F.3d 118 (3d Cir. 2002); Gen. Elec. Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001); Gau Shan Co. v. Bank-
ers Trust Co., 956 F.2d 1349 (6th Cir. 1992); China Trade & Dev. Corp. v. MV Choong Yong, 837 F.2d 33 (2d Cir.
1987); Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d 877, 887 (3d Cir. 1981); Laker Airways v.
Sabena, Belgian World Airways, 731 F.2d 909 (D.C. Cir. 1984); WTA Tour, Inc. v. Super Slam Ltd, 339 F.Supp.3d
390, 402-03 (S.D.N.Y. 2018); BCB Holdings Ltd v. Belize, 232 F.Supp.3d 28, 34 (D.D.C. 2017) (“Anti-suit in-
junctions are intended to protect the Court’s jurisdiction”); ICBC Standard Sec., Inc. v. Luzuriaga, 217 F.Supp.3d
733 (S.D.N.Y. 2016) (“There are two threshold conditions for enjoining foreign litigation: (1) the parties must
be the same in both matters, and (2) resolution of the case before the enjoining court must be dispositive of
the action to be enjoined. If threshold conditions are met for enjoining parallel foreign litigation, a court must
consider five additional factors before issuing an anti-suit injunction: (1) frustration of a policy in the enjoining
forum; (2) the foreign action would be vexatious; (3) a threat to the issuing court’s in rem or quasi in rem juris-
diction; (4) the proceedings in the other forum prejudice other equitable considerations; or (5) adjudication
1398
Courts applying the latter standard tend to regard wasted costs and efforts, arising from a
parallel litigation brought in violation of an arbitration agreement, as insufficient grounds for
issuing antisuit relief. In contrast, courts applying the former standard are more likely to issue
antisuit injunctions based on the wasted time and expense, and potential procedural unfair-
ness, caused by litigation in breach of an arbitration agreement.
Even U.S. courts that are ordinarily reluctant to issue antisuit injunctions will sometimes
do so where foreign litigation is brought in violation of the parties’ agreement to arbitrate,
based on U.S. policies favoring international arbitration:
“The enjoining forum’s strong public policy in favor of arbitration, particularly in inter-
national disputes, would be threatened if [the respondent] were permitted to continue
to pursue the [action in its home courts], particularly in light of the court’s decision
herein granting [the plaintiff’s] motion to compel arbitration.”264
Applying this analysis, one lower court reasoned broadly that “[w]hen a foreign court has
issued an order prohibiting the arbitration proceedings that the parties have agreed to [U.S.
courts have held that] ‘little else is required to authorize an injunction.’”265
In approaching the question of antisuit injunctions, U.S. courts afford significant weight
to a party’s participation in the arbitral process and the results of that process. Where parties
refuse to participate in, and instead seek to frustrate, the arbitral proceedings (i.e., by seeking
anti-arbitration injunctions from a foreign court), U.S. courts are much more likely to issue
of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to
judgment”); BAE Sys. Tech. Sol. & Servs., Inc. v. Korea’s Def. Acquisition Program Admin., 195 F.Supp.3d 776, 787
(D. Md. 2016); APR Energy, LLC v. First Inv. Group Corp., 88 F.Supp.3d 1300, 1314 (M.D. Fla. 2015) (“For pur-
poses of determining whether to issue anti-suit injunction to enjoin foreign suits by persons subject to federal
court jurisdiction, courts have a duty to protect their legitimately conferred jurisdiction to the extent necessary
to provide full justice to litigants”); Bailey Shipping Ltd v. Am. Bureau of Shipping, 2013 WL 5312540 (S.D.N.Y.)
(declining antisuit injunction against foreign litigation with issues related to arbitration because arbitration
would not be dispositive of foreign claim). See also Bédard, Anti-Suit Injunctions in International Arbitration, in
L. Shore et al. (eds.), International Arbitration in the United States 289, 291-92 (2017) (“[D]eference to foreign
judicial proceedings, is the starting point of the analysis. … Under this view, anti-suit injunctions should be
issued only in two situations: to protect the jurisdiction of U.S. courts or to prevent the evasion of important
U.S. public policies.”).
264 SG Avipro Fin. Ltd v. Cameroon Airlines, 2005 U.S. Dist. LEXIS 11117, at *3 (S.D.N.Y.). See also Ibeto Pet-
rochemical Indus., Ltd v. M/T Beffen, 475 F.3d 56, 64-65 (2d Cir. 2007) (citing pro-arbitration policy to compel
arbitration in London while enjoining concurrent lawsuit in Nigeria); Paramedics Electromedicina, 369 F.3d at
654 (invoking policy of “liberal enforcement of arbitration clauses … [which] applies with particular force in
international disputes” where Brazilian party filed Brazilian litigation as “a tactic to evade arbitration”); Smith/
Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 90, 99 (2d Cir. 1999) (citing pro-arbitra-
tion policy to compel arbitration in New York while enjoining concurrent lawsuit in Dominican Republic);
WTA Tour, Inc. v. Super Slam Ltd, 339 F.Supp.3d 390, 405 (S.D.N.Y. 2018) (“the most important factor is that
the foreign lawsuits threaten to circumvent the federal public policy of enforcing arbitration clauses, which
‘applies with particular force in international disputes’”) (quoting Paramedics, 369 F.3d at 654); Leong v. Gold-
man Sachs Group Inc., 2016 WL 1736164 (S.D.N.Y.); T-Jat Sys. 2006 Ltd v. Amdocs Software Sys. Ltd, 2013 WL
6409476, at *3 (S.D.N.Y.); Amaprop Ltd v. Indiabulls Fin. Servs. Ltd, 2010 WL 1050988, at *6 (S.D.N.Y.) (“orders
issued by the Indian courts have derailed the arbitration proceedings the parties agreed to … and frustrated
U.S. policy favoring enforcement of arbitration agreements”); Suchodolski Assocs., Inc. v. Cardell Fin. Corp., 2006
U.S. Dist. LEXIS 83169, at *4 (S.D.N.Y.); Affymax, Inc. v. Johnson & Johnson, 420 F.Supp.2d 876, 884 (N.D. Ill.
2006); SG Avipro Fin. Ltd, 2005 WIL 1353955, at *2.
265 Citibank, NA v. Mazza, 2019 WL 3890873, at *1 (S.D. Fla.) (quoting Storm LLC v. Telenor Mobile
Commc’ns AS, 2006 WL 3735657, at *9 (S.D.N.Y.)); Amaprop Ltd v. Indiabulls Fin. Servs. Ltd, 2010 WL 1050988,
at *6 (S.D.N.Y.) (quoting Storm LLC v. Telenor Mobile Commc’ns AS, 2006 WL 6167978, at *26 (S.D.N.Y.)).
1399
antisuit injunctions against the litigation.266 Where parties participate in the arbitral process,
while also commencing litigation in foreign courts challenging the validity of the arbitration
agreement, U.S. courts are less likely to enjoin the foreign proceeding, at least until the arbitral
tribunal makes an award.267
U.S. courts also consider the importance of the location of the arbitral seat in deciding
whether to issue an antisuit injunction. Where the arbitral seat is in the United States, it is
more likely that an injunction will be issued.268 Relatedly, U.S. courts have also considered the
likelihood that a foreign judicial proceeding will provide a neutral and competent forum for
resolving challenges to the existence or validity of the arbitration agreement.269
Some U.S. courts have also granted antisuit injunctions to prevent litigation from under-
mining the relief granted by an award which the U.S. court had already confirmed.270 Other
U.S. courts have refused to enjoin foreign proceedings aimed at frustrating enforcement of an
arbitral award, even where such proceedings were commenced outside the arbitral seat and in
clear violation of the New York Convention.271
[d] Antisuit Injunctions in Civil Law Jurisdictions

In contrast to the common law approach, civil law courts have generally refused to grant an-
tisuit orders, including to enforce international arbitration agreements.272 In most instances,
266 See, e.g., Paramedics Electromedicina, 369 F.3d at 654; Wal-Mart Stores, Inc. v. PT Multipolar Corp., 202
F.3d 280 (9th Cir. 1999) (affirming antisuit injunction against Indonesian proceedings in violation of arbitra-
tion agreement); Espiritu Santo Holdings, 2019 WL 2240204 (granting antisuit injunction where party had
obtained preliminary anti-arbitration injunction from foreign court); Amaprop Ltd v. Indiabulls Fin. Servs. Ltd,
2010 WL 1050988 (S.D.N.Y.) (granting antisuit injunction where party seeking to litigate rather than arbitrate
had obtained anti-arbitration injunction, initially on ex parte basis, from foreign court); Storm, LLC v. Telenor
Mobile Commc’ns AS, 2006 U.S. Dist. LEXIS 90978, at *26 (S.D.N.Y.). See also Phull, U.S. Anti-Suit Injunctions
in Support of International Arbitration: Five Questions American Courts Ask, 28 J. Int’l Arb. 21 (2011).
267 See, e.g., LAIF X SPRL v. Axtel, SA de CV, 390 F.3d 194 (2d Cir. 2004); Empresa Generadora de Electrici-
dad ITABO, SA v. Corporación Dominicana de Empresas Eléctricas Estatales, 2005 WL 1705080, at *8 (S.D.N.Y.).
268 See, e.g., WTA Tour, Inc. v. Super Slam Ltd, 339 F.Supp.3d 390, 406 (S.D.N.Y. 2018); Alstom Chile SA
v. Mapfre Compania de Seguros Generales Chile SA, 2013 WL 5863547, at *3 (S.D.N.Y.); Bailey Shipping Ltd v.
Am. Bureau of Shipping, 2013 WL 5312540, at *10-13 (S.D.N.Y.); Travelport Global Distrib. Sys., BV v. Bellview
Airlines, Ltd, 2012 WL 3925856, at *6 (S.D.N.Y.); Amaprop Ltd v. Indiabulls Fin. Servs. Ltd, 2010 WL 1050988,
at *9 (S.D.N.Y.). See also Restatement of the U.S. Law of International Commercial and Investor-State Arbitration
§2.29(d)(i) & Reporters’ Note c(ii) (2019).
269 See, e.g., Answers in Genesis of Ky. Inc. v. Creation Ministries, 556 F.3d 459, 471 (6th Cir. 2009); LAIF
X SPRL v. Axtel, SA de CV, 390 F.3d 194, 199-200 (2d Cir. 2004) (Mexican court able to consider issues
governed by Mexican law); Cybernaut Capital Mgt Ltd v. Partners Group Access Secondary 2008, LP, 2013 WL
4413754, at *5 (S.D.N.Y.).
270 See, e.g., Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d 111 (2d
Cir. 2007) (upholding antisuit injunction against foreign litigation that could frustrate foreign arbitral award
and U.S. judgment recognizing that award); Suchodolski Assocs., Inc. v. Cardell Fin. Corp., 2006 U.S. Dist. LEXIS
83169 (S.D.N.Y.).
271 Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 368 (5th
Cir. 2003) (“multiple judicial proceedings on the same legal issues are characteristic of the confirmation and
enforcement of international arbitral awards under the Convention”). Compare the approach of English courts.
See §8.03[C][6][a].
272 See Gaillard, Il est Interdit d’Interdire: Réflexions sur l’Utilisation des Anti-Suit Injunctions dans l’Arbitrage
Commercial International, 2004 Rev. Arb. 47; G. Petrochilos, Procedural Law in International Arbitration 105
(2004) (“Orders enjoining a party from continuing with proceedings commenced by that party in another
forum (commonly called ‘antisuit injunctions’) are peculiar to Anglo-American common law systems”). But
1400
civil law courts are not even requested to order antisuit injunctive relief, because it is clear that
no such remedy is available.
As a general matter, there are grave reservations about antisuit injunctions in many civil
law systems. In one action, a German court declared that an English antisuit injunction, aimed
at restraining proceedings brought in Germany in violation of an arbitration clause, was a vio-
lation of German public policy:
“[S]uch injunctions constitute an infringement of the jurisdiction of Germany be-
cause the German courts alone decide, in accordance with the procedural laws gov-
erning them and in accordance with existing international agreements, whether they
are competent to adjudicate on a matter or whether they must respect the jurisdic-
tion of another domestic or a foreign court (including arbitration courts). … These
rights are safeguarded by the Germany procedural codes and, in many respects, by
the [German Constitution]. The courts must give effect to these rights. Instructions
from foreign courts to the parties concerning the manner in which the proceedings
are to be conducted and their subject-matter are likely to impede the German courts
in fulfilling this task.”273
The Court upheld the refusal of the relevant German authorities to effect service process in
the English antisuit proceeding on the respondent in Germany (as had been requested under
the Hague Service Convention).274
Similarly, in a case referred by the House of Lords to the European Court of Justice, the
ECJ largely upheld the view of most civil law courts with respect to the general impermissi-
bility of antisuit injunctions, at least when issued within the context of the EU (albeit not in
relation to arbitration).275 According to the court:
“Any injunction prohibiting a claimant from bringing such an action must be seen as
constituting interference with the jurisdiction of the foreign court which, as such, is
incompatible with the system of the [Brussels] Convention.”276
see F. Schwarz & C. Konrad, The Vienna Rules: A Commentary on International Arbitration in Austria ¶2-066
(2009) (“[T]here is in principle a statutory basis for [antisuit injunctions] in §585 ZPO. This provision ex-
pressly allows parties to apply to the state courts for interim measures of protection even where the subject mat-
ter of their dispute (and hence the protective measure sought) falls within the scope of an existing arbitration
agreement. In principle, therefore, parties could arguably base their request for an anti-suit injunction on §585
ZPO.”); Hausmaninger, in H.W. Fasching & A. Konecny (eds.), Kommentar zu den Zivilprozessgesetzen §585,
¶¶33 et seq. & §593, ¶¶45 et seq. (2d ed. 2007).
273 Judgment of 10 January 1996, Re the Enforcement of An English Anti-Suit Injunction, 3 VA 11/95, [1997]
I.L.Pr. 320 (Oberlandesgericht Düsseldorf).
274 Id. at 323-24. The German court also reasoned: “Quite apart from this, the sovereignty of Germany
would also be generally infringed if, as in the present case, a foreign court issued instructions to the parties to
an action before a German court as to how they are to act or to enter appearance and what applications they
are to make. Judicial proceedings are guaranteed to be duly conducted in accordance with the rule of law only
if the parties and their representatives are able, without any restriction, to place before the court all the facts
they consider necessary for assessment by the court and to make the applications required by the procedural
situation, and no further demonstration of this is necessary.”
275 Allianz SpA v. W. Tankers Inc., Case No. C-185/07, [2009] E.C.R. I-00663, ¶20 (E.C.J.) (“an anti-suit
injunction, such as that in the main proceedings, is not compatible with Regulation No 44/2001”); Turner
v. Grovit, Case No. C-159/02, [2004] E.C.R. I-3565, ¶27 (E.C.J.) (“It is that mutual trust which has enabled
a compulsory system of jurisdiction to be established”). See also Gaillard, Il est Interdit d’Interdire: Réflexions
sur l’Utilisation des Anti-Suit Injunctions dans l’Arbitrage Commercial International, 2004 Rev. Arb. 47 (antisuit
injunctions ignore principle of competence-competence).
276 Turner v. Grovit, Case No. C-159/02, [2004] E.C.R. I-3565, ¶27 (E.C.J.).
1401
Despite their historic reservations regarding antisuit injunctions, some civil law jurisdictions
have in recent years issued anti-arbitration orders (albeit, as discussed below, improperly).277
Given this, it is possible that the same rationale would support an antisuit order, even in civil
law jurisdictions that have historically rejected this form of relief.
[e] Antisuit Injunctions and EU Law

European Union legislation, and particularly EC Regulation 44/2001 (now superseded by
the Recast Regulation), have been interpreted as forbidding Member State courts from grant-
ing antisuit injunctions against proceedings brought, in violation of a valid arbitration clause
or otherwise, in another EU Member State.278 The ECJ eventually addressed that question in
2009, holding that courts in EU Member States were not permitted to issue antisuit injunc-
tions against proceedings in other Member States, even when those proceedings were brought
in violation of a valid arbitration agreement.279
The starting point for considering the availability of antisuit injunctions in the EU has been
the rule established by the ECJ, applying Regulation 44/2001 (and, previously, the Brussels
Convention), that a Member State court may not enjoin a party from pursuing litigation in an-
other Member State’s courts, even when this litigation is in breach of an exclusive forum selec-
tion clause.280 This rule requires consideration whether the same prohibition against antisuit
injunctions applies within the EU to orders enjoining litigation in violation of international
arbitration (as distinguished from forum selection) agreements. Although there are obvious
parallels between the two scenarios, Regulation 44/2001 contained a so-called “arbitration”
exception,281 which arguably excluded measures taken to enforce arbitration agreements from
the effects of the Regulation.282 The scope of this exception, as applied to antisuit injunctions
against proceedings in EU Member State courts, was considered and ultimately resolved in
the long-running “West Tankers” litigation.
The West Tankers dispute arose when West Tankers chartered one of its vessels to Erg, an
Italian shipper, pursuant to a charterparty that was governed by English law and that provided
277 See §8.04[A]. Moreover, the French Cour de Cassation has held that an antisuit injunction issued to
prevent the breach of a choice of court clause did not contravene French international public policy. Judgment
of 14 October 2009, 12 J.D.I. (Clunet) 40 (French Cour de Cassation Civ.).
278 This question had been the subject of a number of decisions by the English courts, upholding the con-
trary view that EU law did not forbid intra-EU antisuit injunctions, but had remained unresolved for some time
by the European Court of Justice. See, e.g., Through Transp. Mut. Ins. Ass’n (Eurasia) Ltd v. New India Assur. Ass’n
Co. [2004] EWCA Civ 1598 (English Ct. App.); W. Tankers Inc. v. Ras Riunione Adriatica di Sicurta [2005] 2
Lloyd’s Rep. 257 (QB) (English High Ct.).
279 Allianz SpA v. W. Tankers Inc., Case No. C-185/07, [2009] E.C.R. I-633 (E.C.J.).
280 Turner v. Grovit, Case No. C-159/02, [2004] E.C.R. I-3565 (E.C.J.). See Collins, Parallel Proceedings and
the Italian Torpedo; Still Firing After All These Years, 2 Transnat’l Disp. Mgt (2010); Hartley, The European Union
and the Systematic Dismantling of the Common Law of Conflict of Laws, 54 Int’l & Comp. L.Q. 813, 823 (2005).
281 Council Regulation (EC) No. 44/2001 of 22 December 2000, Art. 1(2)(d) (“Regulation shall not ap-
ply to … arbitration”).
282 Marc Rich & Co. AG v. Società Italiana Impianti PA, Case No. C-190/89, [1991] E.C.R. I-3855, ¶18
(E.C.J.) (“The international agreements, and in particular the abovementioned New York Convention on the
recognition and enforcement of foreign arbitral awards … lay down rules which must be respected not by the
arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agree-
ments whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards.
It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already
covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety,
including proceedings brought before national courts.”).
1402
for arbitration in London. During the term of the charter, the West Tankers vessel collided
with a jetty owned by Erg in Syracuse, Italy, resulting in substantial damage and even more
substantial litigation.283
In subsequent proceedings, Erg both obtained an insurance payment from its insurers (Al-
lianz and Generali) and commenced arbitral proceedings in London, pursuant to the charter-
party, to recover excess sums from West Tankers; in response, Erg’s insurers initiated litigation
in Italy (exercising their right of subrogation) against West Tankers to recover the sums they
had paid to Erg.284 The insurers relied on a European litigation tactic labelled the “Italian tor-
pedo,” in which proceedings are initiated in Italian courts (where binding judicial decisions
cannot be expected to be issued for at least ten years) in order to obtain settlement leverage.285
West Tankers objected to the jurisdiction of the Italian courts, relying on the charter
party’s arbitration agreement (which bound the insurers, whose right of subrogation placed
them in Erg’s shoes). In order to avoid the “Italian torpedo,” and in an effort to proceed with
arbitration under the parties’ agreement, West Tankers also sought an antisuit injunction from
the English courts (in the arbitral seat) against the insurers’ continuation of the Italian litiga-
tion in fairly obvious breach of the arbitration agreement.286
The English lower courts granted the requested injunction, relying on the “arbitration
exception” to EC Regulation 44/2001 to hold that the Regulation did not prohibit antisuit
injunctions in aid of arbitration against proceedings in other EU Member State courts. On
appeal, the English Court of Appeal reasoned that Regulation 44/2001 forbid antisuit injunc-
tions to enforce forum selection clauses, but that the situation was different for injunctions to
enforce international arbitration agreements:
283 See Allianz SpA v. W. Tankers Inc., Case No. C-185/07, [2009] E.C.R. I-663 (E.C.J.); W. Tankers Inc. v.
RAS Riunione Adriatica di Sicurta SpA [2007] UKHL 4 (House of Lords); W. Tankers Inc. v. Allianz SpA [2012]
EWCA Civ 27 (English Ct. App.); W. Tankers Inc. v. Allianz SpA [2012] EWHC 854 (Comm) (English High
Ct.); W. Tankers Inc. v. Allianz SpA [2011] EWHC 829 (Comm) (English High Ct.); W. Tankers Inc. v. RAS Ri-
unione Adriatica Sicurta Spa [2007] EWHC 2184 (Comm) (English High Ct.); W. Tankers Inc. v. RAS Riunione
Adriatica di Sicurta SpA [2005] EWHC 454 (Comm) (English High Ct.).
284 Allianz SpA v. W. Tankers Inc., Case No. C-185/07, [2009] E.C.R. I-663 (E.C.J).
285 See Collins, Parallel Proceedings and The Italian Torpedo; Still Firing After All These Years, 2 Transnat’l
Disp. Mgt (2010). See also Nat’l Grid Elec. Transmission plc v. ABB Ltd [2009] EWHC 1326, ¶25 (Ch) (English
High Ct.); SDL Int’l Ltd v. Centre de Co-operation Internationale en Recherche Agronomique pour le Developpement
[2001] CLC 903, ¶25 (Ch) (English High Ct.) (“sometimes, apparently, called the ‘Italian torpedo’ … a strat-
agem sometimes adopted in … litigation, which involves undertaking proceedings in Italy (where, allegedly,
proceedings take a very long time to come trial) thereby frustrating a speedier trial in a jurisdiction such as
England”); Goshawk Dedicated Ltd v. Life Receivables Ireland Ltd, [2008] ILPr 50, ¶6.3 (Dublin High Ct.) (“It
has been asserted in commentaries that a tactic, colourfully described as the ‘Italian Torpedo,’ was available
to parties who wished to delay proceedings by the simple expedient of commencing, at the earliest possible
date, a form of proceedings in the Italian courts thus freezing the possibility of any other proceedings being
commenced, or progressed, elsewhere within the European Union during the prolonged period that the Italian
court was likely to take to determine that it did not have jurisdiction”); Stothers, Gardner & Hinchliffe, Forum
Shopping and “Italian Torpedoes” in Competition Litigation in the English Courts, 4(2) Global Comp. Litg. Rev. 67
(2011); Tumbridge, European Anti-Suit Injunctions in Favour of Arbitration: A Sea Change?, 21(5) Int’l Comp.
& Comm. L. Rev. 177, 180 (2010); Wolff, Tanking Arbitration or Breaking the System to Fix It? A Sink or Swim
Approach to Unifying European Judicial Systems: The ECJ in Gasser, Turner, and West Tankers, 15 Colum. J. Euro.
L. Online 65, 69 (2009) (“Since its ratification, potential defendants in commercial litigations have exploited
Brussels I by pre-emptively seising Belgian and Italian courts, infamous for their overloaded dockets and lethar-
gic deliberations, in order to paralyse or ‘torpedo’ lawsuits for up to several years”).
286 W. Tankers Inc. v. RAS Riunione Adriatica di Sicurta [2005] 2 Lloyd’s Rep. 257 (QB) (English High Ct.).
1403
“At least as regards those anti-suit injunctions granted in respect of breach of juris-
diction clauses, and therefore within the ambit of Regulation 44/2001, this approach
is no longer permissible following the decision in Turner v. Grovit. … However, the
reasoning in that decision is inapplicable to anti-suit injunctions in respect of cases involving
breach of arbitration agreements which fall outside the scope of that Regulation. … Accord-
ingly, it is to be concluded from the authorities binding on this court, that whatever
terminology is adopted – ‘offended’, ‘affronted’ or ‘contrary to comity’ – evidence that
the foreign court would treat the order as an impermissible exercise of jurisdiction by
the English courts is, as a matter of English conflicts rules, not in itself any reason to
withhold such an order to procure compliance with an agreement to arbitrate.”287
On appeal, the House of Lords requested a preliminary ruling from the ECJ on the question
whether it is consistent with Regulation 44/2001 for a Member State court to enjoin proceed-
ings in another Member State on the basis of an arbitration agreement.288
In response, the ECJ ruled that it would be incompatible with Regulation 44/2001 for
a Member State court to issue an order to restrain a person from commencing proceedings
before the courts of another Member State on the ground that such proceedings would be
contrary to an arbitration agreement.289 The ECJ reasoned that, if by means of an antisuit
injunction, the court of a Member State were prevented from examining the validity or the
effects of the arbitration agreement, the antisuit injunction could be used as a tool to bar par-
ties access to an EU Member State court.290 The Court also rejected the argument that the
arbitration exception to Regulation 44/2001 permitted the antisuit injunction, declaring:
“[I]f, because of the subject-matter of the dispute, that is, the nature of the rights to be
protected in proceedings, such as a claim for damages, those proceedings come within
the scope of Regulation No 44/2001, a preliminary issue concerning the applicability
of an arbitration agreement, including in particular its validity, also comes within its
scope of application. … [T]he verification, as an incidental question, of the validity of
an arbitration agreement which is cited by a litigant in order to contest the jurisdiction
of the court before which he is being sued pursuant to the Brussels Convention, must
be considered as falling within its scope.”291
There were a number of post-West Tankers decisions, where English courts suggested that,
notwithstanding the existence of a valid arbitration agreement, they were barred by Regula-
tion 44/2001 from issuing an antisuit injunction against proceedings in another EU Member
State in violation of the arbitration agreement.292 At the same time, English courts also held
that antisuit injunctions in support of arbitration were still available where proceedings have
been brought in breach of an arbitration agreement in the courts of a non-EU state.293
287 Id. at ¶¶48-51.

288 W. Tankers Inc. v. RAS Riunione Adriatica di Sicurta [2007] 1 Lloyd’s Rep. 391 (House of Lords).
289 Allianz SpA v. W. Tankers Inc., Case No. C-185/07, [2009] E.C.R. I-663 (E.C.J.).
290 Id. at ¶31. See also id. at ¶58 (Advocate General’s Opinion).
291 Id. at ¶26. See also id. at ¶¶53-54 (Advocate General’s Opinion).
292 See DHL GBS (U.K.) Ltd v. Fallimento Finmatica SpA [2009] EWHC 291 (Comm) (English High Ct.);
Youell v. La Reunion Aerienne [2008] EWHC 2493 (Comm) (English High Ct.).
293 AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA
Civ 647 (English Ct. App.) (issuing antisuit injunction to restrain proceedings brought in Kazakhstan), aff’d,
[2013] UKSC 35 (U.K. S.Ct.); Gulf Int’l Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66 (English Ct.
App.) (issuing antisuit injunction to restrain proceedings brought in Tunisia); Shashoua v. Sharma [2009]
EWHC 957, ¶36 (Comm) (English High Ct.) (“This does not however mean that the rationale for [the West
1404
The ECJ’s decision in the West Tankers case attracted widespread criticism.294 Commenta-
tors criticized the Court’s reasoning, as well as the fact that its decision undercut the parties’
expectation that courts in the arbitral seat would enforce agreements to arbitrate and impeded
enforcement of the New York Convention. In the words of one critic:
“the real concern with the West Tankers decision is that as much as the ECJ might like
the idea of uniform courts (trusting one another), uniform procedures and uniform
quality of decision making across the Member States, that is far from being the case at
present, so the system is open to inefficiency and exploitation.”295
Critics also observed that the West Tankers rule made the European Union a less attractive
location as an arbitral seat, because of the unavailability of antisuit injunctions as a remedy
against litigation in breach of arbitration agreements (and the risk of dilatory litigation in a
number of EU jurisdictions (such as the so-called Italian torpedo)).296
In response to these criticisms, a variety of proposals for reform emerged from different
EU bodies – none of which proposed perpetuating the West Tankers approach. The EU ini-
tiated a consultation process on reforming Regulation 44/2001, which included proposals
Tankers] decision, which is binding in Member States, applies to the position between England on the one
hand and a country which is not a Member State”). See also Shashoua v. Sharma [2010] EWCA Civ 15 (English
Ct. App.).
294 See Bělohlávek, West Tankers as A Trojan Horse with Respect to the Autonomy of Arbitration Proceedings
and the New York Convention 1958, 27 ASA Bull. 646 (2009); Clifford & Browne, Lost at Sea or A Storm in A
Teacup? Anti-Suit Injunctions After Allianz SPA v. West Tankers Inc., 2009 Int’l Arb. L. Rev. 12; Markus & Gir-
oud, A Swiss Perspective on West Tankers and Its Aftermath: What About the Lugano Convention?, 28 ASA Bull.
230 (2010); Merkin, Anti-Suit Injunctions: The Future of Anti-Suit Injunctions in Europe, 9(4) Arb. L. Monthly
1-9 (2009); Noussia, Antisuit Injunctions and Arbitration Proceedings: What Does the Future Hold?, 26 J. Int’l Arb.
311 (2009); Rainer, The Impact of West Tankers on Parties’ Choice of A Seat of Arbitration, 95 Cornell L. Rev. 431
(2010).
295 Clifford & Browne, Lost at Sea or A Storm in A Teacup? Anti-Suit Injunctions After Allianz SPA v. West
Tankers Inc., 2009 Int’l Arb. L. Rev. 12, 19-22.
296 L. Collins et al. (eds.), Dicey, Morris and Collins on The Conflict of Laws ¶11-048 (15th ed. 2012 & Update
2018); Hales & Rogerson, The Award and the Courts: Chronicle of A Death Foretold? – West Tankers and the De-
mise of the Anti-Suit Injunction in Arbitration, 2010 Austrian Y.B. Int’l Arb. 171, 191 (“The practical consequences
of the case … simply do not appear to have been properly appreciated by Advocate General Kokott or the ECJ.
The ECJ has put the efficiency of arbitration at risk. This brief judgment has caused a great deal of concern. It
will continue to do so well into the future as it [sic] implications are far-reaching and still emerging. Whether
one agrees with West Tankers or not, it is difficult to imagine 35 more damaging paragraphs to arbitration than
the ECJ’s decision in this case.”).
Other commentators argue that the detrimental effect of West Tankers on the attractiveness of Lon-
don and Europe as an arbitral seat may not be substantial. See, e.g., Carducci, Arbitration, Anti-Suit Injunctions
and Lis Pendens Under the European Jurisdiction Regulation and the New York Convention, 27(2) Arb. Int’l 171
(2011); Clifford & Browne, Lost at Sea or A Storm in A Teacup? Anti-Suit Injunctions After Allianz SpA v. West
Tankers Inc., 2009 Int’l Arb. L. Rev. 12, 21 (“[T]he availability of anti-suit injunctions is unlikely to affect
the choice of seat for the vast majority of parties. Zurich, Geneva, Stockholm and Paris have all flourished as
arbitration centres without their courts granting anti-suit injunctions as a matter of course. The ECJ’s decision
therefore seems unlikely to impact the popularity of London, which still has a myriad of features to commend
it to those selecting a seat for arbitration.”); Materna, An Unnecessary Consternation: An Analysis of the Future of
EU Arbitration in the Wake of the West Tankers Decision, 11 Pepp. Disp. Resol. L.J. 571 (2011); Noussia, Antisuit
Injunctions and Arbitration Proceedings: What Does the Future Hold?, 26(3) J. Int’l Arb. 311 (2009); Santomauro,
Sense and Sensibility: Reviewing West Tankers and Dealing with Its Implications in the Wake of the Reform of EC
Regulation 44/2001, 6 J. Priv. Int’l L. 281 (2010).
1405
to delete the arbitration exception or to grant exclusive jurisdiction to the courts of the EU
Member State in the arbitral seat.297
In June 2012, the EU Council proposed that the arbitration exception be retained and a
new recital added to Regulation 44/2001 which would detail the scope of the exception.298 In
November 2012, the European Parliament voted in favor of the proposed reform of Council
Regulation (EC) on jurisdiction, recognition and enforcement of judgments in civil and com-
mercial matters (Recast Regulation). As discussed above, the Recast Regulation entered into
force in January 2015, replacing the prior existing EC Regulation 44/2001.
It appears that West Tankers’ prohibition against antisuit injunctions against proceedings
in other EU Member State courts remains applicable under the Recast Regulation (because
antisuit injunctions would bar nationals of EU states access to Member State courts).299 Thus,
an English lower court recently confirmed that the West Tankers rules remain applicable under
the Recast Regulation.300 The court held:
“It may be observed that there is nothing here to undermine, or even to address, the
fundamental principles concerning the effectiveness of the Regulation, which were
affirmed in the West Tankers case and reiterated in Gazprom. Neither the Recast Reg-
ulation itself nor its recitals say expressly that those principles no longer apply or that
an anti-suit injunction in support of arbitration issued by a court in a member state
takes precedence over them. If the EU legislature intended to reverse the West Tankers
decision, it chose an odd way in which to do so.”301
297 European Commission, Green Paper on the Review of Council Regulation (EC) No 44/2001 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ¶7 (2009). See also George,
Guest Editorial: Hess, Should Arbitration and European Procedural Law Be Separated or Coordinated?, Conflicto-
flaws.net (14 Feb. 2010); van Houtte, Why Not Include Arbitration in the Brussels Jurisdiction Regulation?, 21(4)
Arb. Int’l 509 (2005).
The Committee on Legal Affairs of the European Parliament also published a draft report in April 2010,
which was followed by its Final Report in June 2010, and a European Commission draft report in December
2010. See European Parliament Committee on Legal Affairs, Draft Report of the Committee of Legal Affairs of
the European Parliament on Review of Council Regulation (EC) No. 44/2001, E.C. Doc. 2009/2140(INI) (27
Apr. 2010); European Parliament Committee on Legal Affairs, Report of the Committee of Legal Affairs of the
European Parliament on the Implementation and Review of Council Regulation (EC) No. 44/2001, E.C. Doc. A7-
0219/2010 (29 June 2010) (proposing retention of arbitration exception); European Commission, Proposal for
A Regulation of the European Parliament and of the Council, E.C. Doc. 2010/0383(COD) (14 Dec. 2010) (pro-
posing retention of arbitration exception, with provision that Member States’ courts must stay proceedings
where there is an arbitration agreement in dispute and tribunal has been or is in process of being constituted or
related proceedings have commenced within Member State designated as arbitral seat).
298 EU Council, Proposal for A Regulation of the European Parliament and of the Council on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), E.C. Doc. 10609/12 (1 June
2012) (proposing retention of arbitration exception).
299 See, e.g., Camilleri, Recital 12 of the Recast Regulation: A New Hope?, 62 Int’l & Comp. L.Q. 899, 905-
06 (2013) (concluding that Recast Regulation continues to prohibit antisuit injunctions, based on arbitration
agreement, against litigation in other EU Member States).
300 See Nori Holding Ltd v. PJSC “Bank Otkritie Fin. Corp.” [2018] EWHC 1343 (Comm) (English High
Ct.). See also Lee & Phua, Why Allianz v West Tankers Still Applies Under the Brussels Regulation (Recast): An
Analysis of Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm), 10(4) J. Int’l Disp. Sett. 520 (2019)
(endorsing decision that West Tankers was still applicable under Recast Regulation, but challenging court’s
reasoning and interpretation of Advocate General’s Wathelet’s arguments in Gazprom).
301 Nori Holding Ltd v. PJSC “Bank Otkritie Fin. Corp.” [2018] EWHC 1343, ¶90 (Comm) (English High
Ct.).
1406
The ECJ has nonetheless held that EU Member State courts are not precluded by the Recast
Regulation from recognizing antisuit injunctions issued by arbitral tribunals (as distinguished
from Member State courts). In a 2015 decision, the Court substantially adopted the opinion
of Advocate General Wathelet concluding that
“(1) [the Brussels I Regulation] must be interpreted as not requiring the court of a
Member State to refuse to recognise and enforce an anti-suit injunction issued by an
arbitral tribunal. (2) The fact that an arbitral award contains an anti-suit injunction
… is not a sufficient ground for refusing to recognise and enforce it on the basis of
Article V(2)(b) of the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, signed in New York on 10 June 1958.”302
The ECJ also held that the Regulation “must be interpreted as not precluding a court of a
Member State from recognising and enforcing, or from refusing to recognize and enforce, an
arbitral award prohibiting a party from bringing certain claims before a court of that Member
State.”303
[f] Future Directions: Antisuit Injunctions in International Arbitration

Despite the controversy that the subject has caused, antisuit injunctions are, in appropriate
circumstances, an effective means of enforcing the negative obligations imposed by inter-
national arbitration agreements. They are not inconsistent with the New York Convention
(because they enforce, rather than breach, international arbitration agreements) and, used
appropriately, offer important benefits. Decisions like West Tankers, which impede or prevent
use of antisuit injunctions in aid of international arbitration (and forum selection) agreements
are unfortunate and retrograde, particularly given litigation realities in a number of European
(and other) jurisdictions. Nonetheless, the basic rule in West Tankers, forbidding EU Member
State courts from issuing antisuit injunctions against proceedings in other EU Member State
courts appears to remain in effect.
Where a party brings suit in a national court, in clear breach of the negative obligations
of an international arbitration agreement, and other mechanisms for enforcing the parties’
agreement and the obligations of the New York Convention are not adequate, an antisuit
injunction should presumptively be available.304 In general, consistent with the reasoning of
English and Singaporean courts,305 the uncured breach of the agreement to arbitrate through
the commencement of litigation should, without more, be sufficient to justify an antisuit in-
junction. In principle, the foreign forum where litigation in violation of the Convention is
pending should be given an opportunity to dismiss wrongfully-commenced litigation and
refer the parties to arbitration. Nonetheless, where this does not occur, courts in other Con-
tracting States may, and in most circumstances should, enforce arbitration agreements and the
Convention through the use of antisuit injunctions.
302 “Gazprom” OAO v. Lietuvos Respublika, Request for A Preliminary Ruling from the Lietuvos Aukščiausiasis
Teismas, [2015] Case No. C‑536/13 (E.C.J.) (Advocate General’s Opinion).
303 “Gazprom” OAO v. Lietuvos Respublika, [2015] Case No. C‑536/13 (E.C.J.).
304 An antisuit injunction should generally not be available where the foreign litigation is based upon a local
public policy or nonarbitrability rule (see Chapter 6) that is consistent with the Convention (see §4.05[A][2];
§4.05[C][5]) and which does not seek to interfere with or enjoin the arbitral process. In the latter case, an
antisuit injunction would not only properly be available, but would be appropriate.
305 See §§8.03[C][6][a]-[b].
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[7] Monetary Damages for Breach of Obligation Not to Litigate Arbitrable

Disputes
Another means of enforcing the negative effects of an arbitration agreement is to award mon-
etary damages for breaches of the parties’ undertaking in their agreement not to litigate dis-
putes that have been submitted to arbitration. Indeed, in historical contexts when arbitration
agreements were not capable of specific performance, damages were the only remedy that
parties could obtain for their breach.306 It was frequently (and correctly) remarked, however,
that damages for breach of an arbitration agreement are an uncertain and inadequate means
of enforcement.307 That is in large part because calculating the quantum of damages is difficult
and speculative.308 309
Nevertheless, while inadequate when considered alone, damages for breach of an ar-
bitration agreement can be an appropriate supplementary means of enforcing arbitration
agreements, by increasing the disincentives for such conduct. A few contemporary judicial
306 This was the position in much of the United States prior to the FAA. See §1.01[B][5]; Red Cross Line v.
Atl. Fruit Co., 264 U.S. 109, 118 (U.S. S.Ct. 1924) (“agreement to arbitrate was legal in New York and damages
were recoverable for a breach thereof”); Dr. C. W. Payton v. Hurst Eye, Ear, Nose & Throat Hosp., 318 S.W.2d 726,
731 (Tex. App. 1958) (under Texas common law, a party “could not compel an arbitration … and is relegated
to a suit for damages for any breach of the arbitration clause”). But see Munson v. Straits of Dover S.S. Co., 102
F. 926, 928 (2d Cir. 1900) (declining to order more than nominal damages for breach of arbitration agree-
ment: dispute resolution by litigation is “theoretically at least, the safest and best devised by the wisdom and
experience of mankind”); Restatement (First) Contracts §550 (1932) (only “nominal damages” for breach of
agreement to arbitrate).
307 See §1.01[B][5]. See also Riggs v. MySpace, Inc., 444 F.App’x 986, 987 (9th Cir. 2011) (“district court
properly dismissed Riggs’s ‘promissory fraud breach of contract claim,’ arising from MySpace’s alleged breach
of an arbitration clause in its Terms of Use, because Riggs failed to allege any legally cognizable damages”);
Price v. Cushman & Wakefield, Inc., 829 F.Supp.2d 201, 218 (S.D.N.Y. 2011) (“even assuming without deciding
that Plaintiff had a right to arbitration, and that C & W breached the Employment Contract by denying him
that right, Plaintiff has failed to prove an essential element of a breach-of contract-action, namely, that any
damages resulted from the breach”).
308 OT Africa Line Ltd v. MAGIC Sportswear Corp. [2005] EWCA Civ 710, ¶33 (English Ct. App.)
(“[D]amages will not be easily calculable and can indeed only be calculated by comparing the advantages and
disadvantages of the respective fora. This is likely to involve an even graver breach of comity than the granting
of an antisuit injunction.”).
309 See, e.g., Gabbanelli Accordions & Imp., LLC v. Gabbanelli, 575 F.3d 693, 695 (7th Cir. 2009) (“A person
who having agreed to arbitrate instead brings a suit has broken his contract, and the breach can be pleaded
as a defense to his suit”); Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F.Supp.2d 230,
239 (S.D.N.Y. 2011) (“clause creates an obligation on the parties to bring all actions falling within the clause’s
scope, including this action, in the chosen forum, and that [plaintiff] consequently breached this obligation by
bringing this action in [another forum]”); Cent. Reserve Life Ins. Co. v. Marello, 2000 WL 1474106, at *2 (E.D.
Pa.) (“Filing a lawsuit based on arbitrable claims constitutes such a breach”), aff’d, 281 F.3d 219 (3d Cir. 2001).
Relatedly, U.S. courts hold that damages for the breach of a forum selection clause may, and often should,
be awarded. See, e.g., Ball v. Versar, Inc., 454 F.Supp.2d 783 (S.D. Ind. 2006); Allendale Mut. Ins. Co. v. Excess Ins.
Co. Ltd, 992 F.Supp. 278 (S.D.N.Y. 1998); Lab. Corp. of Am. Inc. v. Upstate Testing Labs., Inc., 967 F.Supp. 295,
299 (N.D. Ill. 1997); Taylor v. Bevinco Bar Sys., 1997 U.S. Dist. LEXIS 22098 (D. Ariz.); Indosuez Int’l Fin., BV
v. Nacional Reserve Bank, 758 N.Y.S.2d 308 (N.Y. App. Div. 2003). See also Friedland & Brown, A Claim for
Monetary Relief for Breach of Agreement to Arbitrate as A Supplement or Substitute to An Anti-Suit Injunction, in A.
van den Berg (ed.), International Arbitration 2006: Back to Basics 271 (2007) (“US Courts have recognized that
the legal principles applicable to an action for breach of a forum selection clause also govern claims for breach
of an arbitration agreement, and have found that damages may be appropriate remedy for such breach”).
1408
decisions in the United States,309 England310 and Switzerland311 have either awarded damages
for the breach of an arbitration agreement or indicated that the possibility for doing so ex-
isted.312 Nonetheless, some contemporary judicial decisions deny the existence of a right to
damages for breaches of arbitration agreements (ironically, effectively resurrecting the historic
hostility to arbitration agreements, but in reverse form, as the rationale for doing so).313
In the United States, some courts and commentators have concluded that the question
whether or not a breach of the arbitration agreement has occurred, is for the arbitral tribunal
to decide.314 When presented with claims for damages for breach of the arbitration agreement,
a number of ICC tribunals have awarded damages provided that the breach of the arbitration
agreement was the cause of the damages.315
310 See, e.g., Schifffahrtsgesellschaft Detlev von Appen GmbH v. Voest Alpine Intertrading GmbH [1997] 2
Lloyd’s Rep. 279 (English Ct. App.); Mantovani v. Caparelli SpA [1980] 1 Lloyd’s Rep. 375 (English Ct. App.);
CMA CGM SA v. Hyundai Mipo Dockland Ltd [2008] EWHC 2791 (Comm) (English High Ct.) (upholding
award where tribunal awarded damages for breach of agreement to arbitrate). See also Dutson, Breach of An
Arbitration or Exclusive Jurisdiction Clause: The Legal Remedies if It Continues, 16 Arb. Int’l 89 (2000); Wessel
& North Cohen, In Tune with Mantovani: The “Novel” Case of Damages for Breach of An Arbitration Agreement,
4(2) Int’l Arb. L. Rev. 65 (2001).
311 Judgment of 11 February 2010, DFT 4A_444/2009 (Swiss Fed. Trib.) (tribunal’s declaration permitting
recovery of damages for breach of arbitration clause (by bringing proceedings in national court) did not violate
Swiss public policy and was within tribunal’s jurisdiction).
312 See also Friedland & Brown, A Claim for Monetary Relief for Breach of Agreement to Arbitrate as A Sup-
plement or Substitute to An Anti-Suit Injunction, in A. van den Berg (ed.), International Arbitration 2006: Back to
Basics 271 (2007); Michaelson, Anti-Suit Injunctions and the Recoverability of Legal Costs as Damages for Breach
of An Arbitration Agreement, 74(1) Arb. 12, 18 (2008) (“An exclusive jurisdiction or arbitration clause con-
tains an implied negative obligation not to litigate in any other forum”); T. Oehmke & J. Brovins, Commercial
Arbitration §15:11 (3d ed. 2015) (“A counterclaim brought to compel arbitration might also seek damages for
breach-of arbitration agreement (measured by the cost of legal fees and related expenses in bring the counter-
claim); nevertheless, the court would likely compel the parties to arbitrate that dispute as well”).
313 See, e.g., Wells v. Entre Computer Ctrs, Inc., 1990 WL 146981, at *3 n.3 (4th Cir. 1990) (court aware of
no case “in which a court has awarded damages because a plaintiff brought suit in a forum other than the one
to which it had contractually agreed”); RGC Int’l Investors, LDC v. ARI Network Servs. Inc., 2004 WL 189784
(D. Del.); Pearson Dental Supplies, Inc. v. Super. Court, 48 Cal.4th 665, 673-74 (Cal. 2010); Sargon Enters., Inc. v.
Browne George Ross LLP, 15 Cal.App.5th 749, 769 (Cal. Ct. App. 2017) (“an arbitration agreement requires a
party to submit a dispute to arbitration if ordered by a court to do so – but it does not preclude a party from ini-
tiating a civil action or asking a court to resolve disputed issues over an arbitration agreement’s applicability or
enforceability”); Sheffield United Football Club Ltd v. W. Ham United Football Club plc [2008] EWHC 2855, ¶22
(Comm) (English High Ct.) (“it is well established that the remedy of damages is not regarded as an adequate
remedy for breach of an arbitration clause”); Starlight Shipping Co. v. Tai Ping Ins. Co. [2007] EWHC 1893, ¶12
(Comm) (English High Ct.) (“Damages would, for all the reasons given in the authorities, be an inadequate
remedy for breach of such a clause since its very nature requires the parties to have their disputes determined
in arbitration. A party to such an agreement should not be put to the trouble of having disputes determined
elsewhere in a manner contrary to the express contract between the parties.”).
314 See, e.g., Shaw Group, Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 122 n.3 (2d Cir. 2003) (whether party
could establish if counter-party “breached a duty to arbitrate or that court-incurred attorneys’ fees and costs
constitute compensable damages for any such breach are questions we leave to the arbitrator”); T. Oehmke &
J. Brovins, Commercial Arbitration §15:11 (3d ed. 2015) (“A counterclaim brought to compel arbitration might
also seek damages for breach-of arbitration agreement (measured by the cost of legal fees and related expenses
in bring the counterclaim); nevertheless, the court would likely compel the parties to arbitrate that dispute as
well”).
315 See, e.g., Final Award in ICC Case No. 17185, 2016:2 ICC Disp. Resol. Bull. 80, ¶7.14 (2016) (tribunal
held that, where respondent had “regularly attempted to derail the[] proceedings by instigating actions in local
courts on issues that are within the jurisdiction of the Tribunal and of the ICC,” costs incurred by claimant in
1409
§8.04 COURT ORDERS ENJOINING ARBITRATION: ANTI-

ARBITRATION INJUNCTIONS316
Some national courts have issued injunctive relief similar in concept to antisuit injunctions
against foreign litigation, forbidding a party from pursuing arbitral proceedings on the grounds
that the parties’ arbitration agreement was either invalid or did not encompass the claims as-
serted before the arbitrators. Both the standards for issuing such “anti-arbitration injunctions”
and the effects of such orders on arbitral tribunals raise complex issues.
[A] Anti-Arbitration Injunctions Issued by National Courts

An anti-arbitration injunction is essentially an antisuit injunction or order, issued against a
party (or arbitrators) to preclude the initiation or continuation of an arbitration. Typically,
anti-arbitration injunctions are sought to be justified on the grounds that there is no valid
arbitration agreement, and that one party is therefore entitled to an order preventing an il-
legitimate process from going forward. In many cases, anti-arbitration injunctions are part
of deliberately obstructionist tactics, typically pursued in sympathetic local courts, aimed at
disrupting the parties’ agreed arbitral mechanism.
It was formerly said that there is little authority on the topic of anti-arbitration injunc-
tions.317 That is no longer true. There is a substantial body of such authority, with a number of
national court decisions in both common law and civil law jurisdictions enjoining (or refusing
to enjoin) international arbitral proceedings. In particular, common law courts have not infre-
quently affirmed their authority to enjoin international arbitrations, including foreign-seated
arbitrations, on the grounds that no valid or enforceable arbitration agreement exists and that
permitting an arbitration to proceed in such circumstances would be oppressive or inequitable.
Courts in the United States have long exercised injunctive power to order parties not to
proceed with an arbitration, particularly in domestic matters.318 In the words of one court, re-
defending against those actions “are the result of [Respondent]’s breach of the Arbitration Agreement,” and
“are costs recoverable in this arbitration”); Final Award in ICC Case No. 8887, discussed in Judgment of 30 Sep-
tember 2013, DFT 4A_232/2013 (Swiss Fed. Trib.) (tribunal held that, since “the agreement to arbitrate is a
part of a binding contract between parties, the Defendant made itself liable for damages which the claimant
might suffer”; tribunal ordered the respondent pay costs for proceedings it had initiated before Greek court,
and that claimant could seek, in arbitration, compensation from respondent for amount equivalent to any pay-
ments that Greek court might order it to make); Final Award in ICC Case No. 5946, XVI Y.B. Comm. Arb. 97,
112 (1991) (“Claimant has violated the arbitration clause in the Agreement by bringing suit before the United
States Federal District Court in New York rather than instituting arbitration proceedings. … In the light of the
clear arbitration clause contained in the Agreement, the refusal of claimant to submit the dispute to arbitration
must be considered sufficiently frivolous and unreasonable to warrant an award of attorneys’ fees against it.”).
316 For commentary, see Clavel, Exceptional Circumstances Allowing English Courts to Issue Injunctions Re-
straining Foreign Arbitration Proceedings, 2012 Paris J. Int’l Arb. 359; E. Gaillard (ed.), Anti-Suit Injunctions in
International Arbitration (2005) (including contributions from Baum, de Boisséson, Fouchard, Gaillard,
Greenwood, Lévy, Lew, Schneider and Schwebel); Gorskie, US Courts and the Anti-Arbitration Injunctions, 28
Arb. Int’l 295 (2012); Hascher, Injunctions in Favor of and Against Arbitration, 21 Am. Rev. Int’l Arb. 189 (2010);
Lew, Does National Court Involvement Undermine the International Arbitration Process?, 24 Am. U. Int’l L. Rev.
489 (2009).
317 See, e.g., Schwebel, Anti-Suit Injunctions in International Arbitration: An Overview, in E. Gaillard (ed.), An-
ti-Suit Injunctions in International Arbitration 6 (2005) (“Scholarly analysis of the subject of anti-suit injunctions
in respect of arbitration is surprisingly scarce”).
318 See, e.g., In re Am. Exp. Fin. Advisors Secs. Litg., 672 F.3d 113, 140 (2d Cir. 2011); Citigroup Global Mkts,
Inc. v. VCG Special Opportunities Master Fund Ltd, 590 F.3d 30, 40 (2d Cir. 2010); McLaughlin Gormley King
Co. v. Teminex Int’l Co., LP, 105 F.3d 1192, 1194 (8th Cir. 1997); In re Y & A Group Sec. Litg. v. Y & A Group, 38
1410
jecting the argument that the FAA prohibits injunctions barring arbitrations: it “should follow
[from FAA’s power to compel arbitration] that the court should have a concomitant power to
enjoin arbitration where arbitration is inappropriate” and “[a] failure to [order the arbitration
to be suspended] would frustrate the goals of arbitration, since there would be delay and in-
creased expense as the parties litigated in both fora.”319 One U.S. court suggested, in a domestic
context, that it would be obligated, not just authorized, to enjoin an arbitration brought on the
basis of an invalid arbitration agreement.320
Although U.S. lower courts have most frequently enjoined domestic arbitrations, they
have also done so in a number of international cases involving arbitration agreements sub-
ject to the New York Convention,321 including in some cases involving foreign-seated arbitra-
tions.322 In doing so, most U.S. courts have given little, if any, attention to the consistency of
F.3d 380, 382 (8th Cir. 1994) (relying in part on All Writs Act in concluding that “[n]o matter what, courts have
the power to defend their judgments as res judicata, including the power to enjoin or stay subsequent arbitra-
tions”); Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985); Lenox Corp. v. Blackshear, 226 F.Supp.3d 421, 428
(E.D. Pa. 2016) (“A court asked to enjoin an ongoing arbitration must undertake the same inquiry [as the one
to determine whether to stay proceedings pending arbitration]”); CRT Cap. Group v. SLS Cap., SA, 2014 WL
6807701, at *7 (S.D.N.Y.); Citigroup Global Mkts. Inc. v. All Children’s Hosp., Inc., 5 F.Supp.3d 537, 542 (S.D.N.Y.
2014); Farrell v. Subway Int’l, BV, 2011 U.S. Dist. LEXIS 29833, at *6 (S.D.N.Y.) (citing power to compel arbi-
tration under §206: “It would follow … that the court should have a concomitant power to enjoin arbitration
where arbitration is inappropriate”; “a failure to do so would frustrate the goals of arbitration, since there would
be delay and increased expense as the parties litigated in both fora”); Jock v. Sterling Jewelers, Inc., 2010 U.S. Dist.
LEXIS 132759, at *10-11 (S.D.N.Y.) (“[A]s a necessary incident to its power to compel arbitration proceedings
under §4 of the FAA, it may preserve the integrity of those proceedings by enjoining later-filed arbitrations that
arise out of the same controversy. Any other conclusion would impede rational application of §4 of the FAA,
as well as fundamentally limit the power of a court to enforce its own judgments.”); John Hancock Distribs. Inc.
v. Saponaro, 901 F.Supp. 194 (E.D. Pa. 1995) (enjoining arbitration of six putatively time-barred claims, while
requiring arbitration of other claims); L.F. Rothschild & Co. v. Katz, 702 F.Supp. 464 (S.D.N.Y. 1988) (asserting
power to enjoin arbitration); Restatement of the U.S. Law of International Commercial and Investor-State Arbitra-
tion §2.30 & comment b (2019).
319 SATCOM Int’l Group plc v. ORBCOMM Int’l Partners, LP, 49 F.Supp.2d 331, 342 (S.D.N.Y. 1999), aff’d,
205 F.3d 1324 (2d Cir. 1999). See also Merrill Lynch Inv. Managers v. Optibase, Ltd, 337 F.3d 125, 129 (2d Cir.
2003) (party not bound by arbitration agreement “would be irreparably harmed by being forced to expend
time and resources arbitrating an issue that is not arbitrable, and for which any award would not be enforce-
able”); PoolRe Ins. Corp. v. Organizational Strategies, Inc., 2013 WL 3929077 (S.D. Tex.).
320 PaineWebber Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir. 1990) (“If a court determines that a valid arbi-
tration agreement does not exist or that the matter at issue clearly falls outside of the substantive scope of the
agreement, it is obliged to enjoin arbitration”).
321 In re U.S. Lines, Inc., 197 F.3d 631, 639 (2d Cir. 1999) (“In the bankruptcy setting, congressional intent
to permit a bankruptcy court to enjoin arbitration is sufficiently clear to override even international arbitration
agreements”); Tai Ping Ins. Co. v. M/V Warschau, 731 F.2d 1141, 1143-44 (5th Cir. 1984); Societe Generale de
Surveillance, SA v. Raytheon Euro. Mgt & Sys. Co., 643 F.2d 863, 868 (1st Cir. 1981) (“to enjoin a party from ar-
bitrating where an agreement to arbitrate is absent is the concomitant of the power to compel arbitration where
it is present”); CRT Capital Group v. SLS Capital, 63 F.Supp.3d 367 (S.D.N.Y. 2014) (“arbitration proceeding
governed by the New York Convention [may be enjoined] when the parties ‘have not entered into a valid and
binding arbitration agreement’ or when the claims are ‘not within the scope of an arbitration agreement’”)
(quoting In re Am. Express Fin. Advisors Sec. Litg., 672 F.3d 113, 140 (2d Cir. 2011)); Farrell v. Subway Int’l, BV,
2011 WL 1085017 at *1, 7 (S.D.N.Y.) (granting motion to stay arbitration that was initiated contrary to par-
ties’ agreement); Masefield AG v. Colonial Oil Indus., Inc., 2005 WL 911770 (S.D.N.Y.) (preliminary injunction
against ICC arbitration, subject to New York Convention, seated in United States). See also DynaResource de
Mexico, SA de CV v. Goldgroup Res., Inc., 2015 Lexis 131430 (D. Colo.).
322 See, e.g., Tai Ping Ins. Co., Ltd v. M/V Warschau, 731 F.2d 1141, 1143-44 (5th Cir. 1984) (enjoining Lon-
don-seated arbitration); Societe Generale de Surveillance, SA v. Raytheon Euro. Mgt & Sys. Co., 643 F.2d 863,
1411
anti-arbitration injunctions with the Convention. The U.S. Supreme Court has also not yet
considered the issue.
Although asserting the power to grant anti-arbitration injunctions against foreign-seated
arbitrations, U.S. courts have been reserved in doing so, issuing such relief only in exceptional
cases. This can be explained in part by the fact that the FAA implements a strong public policy
in favor of arbitration and in part by the relatively cautious approach that U.S. courts take
towards antisuit injunctions generally.323
In particular, U.S. courts have generally declined to issue injunctive relief against participa-
tion in arbitral proceedings that are subject to the New York Convention, generally citing prin-
ciples of comity and deference to the supervisory authority of foreign courts.324 In the words
of one court, “comity and the purposes of the New York Convention do not support issuing
an injunction against a foreign arbitral proceeding.”325 Some U.S. courts have gone further and
held that they lack the power to enjoin a foreign arbitration subject to the Convention; as
868 (1st Cir. 1981) (enjoining Swiss-seated arbitration); McIntire v. China MediaExpress Holdings, Inc., 113
F.Supp.3d 769, 776 (S.D.N.Y. 2015) (enjoining Hong Kong-seated arbitration); Oracle Am., Inc. v. Myriad Group
AG, 2012 WL 146364 (N.D. Cal.) (enjoining international arbitration, seated in either London or San Fran-
cisco, as to particular claims because court had previously held that arbitration clause excluded those claims
and arbitral tribunal had no authority to consider those claims); Raytheon Eng’rs & Constructors, Inc. v. SMS
Schloemann-Siemag AG, 2000 WL 420866 (N.D. Ill.) (apparently enjoining foreign arbitration, subject to New
York Convention); Am. Life Ins. Co. v. Parra, 25 F.Supp.2d 467 (D. Del. 1998) (apparently enjoining foreign
arbitration, subject to New York Convention); §8.04[A].
323 See §8.03[C][6][c]. See also Cont’l Cas. Co. v. AXA Global Risks (U.K.) Ltd, 2010 WL 1268038 (W.D.
Mo.); Cobra N. Am., LLC v. Cold Cut Sys. Svenska, 639 F.Supp.2d 1217, 1228-29 (D. Colo. 2008) (expressing
skepticism regarding legality and wisdom of issuing injunctions enjoining arbitrations in foreign states).
324 See, e.g., Gen. Elec. Co. v. Deutz AG, 270 F.3d 144 (3d Cir. 2001) (comity precluded injunction, barring
respondent from appealing foreign arbitral tribunal’s ruling on issue of arbitrability and from taking further
steps in arbitration thereafter); BlackBerry Ltd v. Nokia Corp., 2018 WL 5630584, at *1, 3 (D. Del.) (“Comity
concerns also dictate against my enjoining the Swedish arbitration”); Diwan v. EMP Global LLC, 841 F.Supp.2d
246, 249 (D.D.C. 2012) (denying injunction to stay arbitration; holding that plaintiff failed to show that “al-
lowing arbitration proceedings to begin before determining arbitrability would constitute ‘per se’ irreparable
injury,” where parties delegated questions of arbitrability to arbitrator by incorporating UNCITRAL Rules in
arbitration agreement and claims were not “clearly and indisputably outside of the boundaries of the arbitration
agreement”); S & T Oil Equip. & Mach., Ltd v. Juridica Invs. Ltd, 2011 WL 864837 (S.D. Tex.) (denying plaintiffs’
application for temporary restraining order staying pending foreign arbitral proceeding, on grounds that plain-
tiff had not shown likelihood of success on claim that arbitration agreement was invalid); Murphy Oil USA, Inc.
v. SR Int’l Bus. Ins. Co. Ltd, 2007 WL 2752366 (W.D. Ark.) (denying anti-arbitration injunction against English
arbitration; relying on principles of international comity and New York Convention). See also Preferred Care
of Del., Inc. v. Estate of Hopkins, 845 F.3d 765, 767-68 (6th Cir. 2017) (“Consistent with the [FAA’s] policy of
favoring agreements to arbitrate disputes, its appeal provisions prioritize review of district court orders that in-
terfere with arbitration and limit review of orders that compel arbitration. … [9 U.S.C. §16(a)] permits review
of orders that interfere with arbitration, such as … interlocutory orders ‘granting, continuing, or modifying an
injunction against an arbitration.’ But it prohibits appeals from other interlocutory orders that favor arbitration,
such as those granting stays in favor of arbitration, directing or compelling arbitration, or refusing to enjoin an
arbitration.”); Ecuador v. Chevron Corp., 638 F.3d 384, 391 (2d Cir. 2011) (“we need not resolve the question
of whether federal courts have the power to stay arbitration under the FAA (or any other authority) in an
appropriate case”); McIntire v. China MediaExpress Holdings, Inc., 113 F.Supp.3d 769, 775 (S.D.N.Y. 2015) (“The
Court’s authority to enjoin arbitration proceedings is limited by the [FAA] to situations where the underling
arbitration agreement is invalid or nonbinding. Anti-arbitration injunctions issued by district courts where a
valid agreement to arbitrate exists are strongly disfavored.”).
325 URS Corp. v. Lebanese Co. for the Dev. & Reconstruction of Beirut Cent. Dist. SAL, 512 F.Supp.2d 199, 210
(D. Del. 2007).
1412
one lower court held, “the FAA does not authorize an injunction against a foreign arbitral
proceeding.”326
English courts have adopted a comparable approach to that of U.S. courts, asserting the
power to issue anti-arbitration injunctions, but expressing great reluctance actually to do so.327
Despite these reservations, English courts have issued anti-arbitration orders against both
English-seated international arbitrations328 and foreign-seated arbitrations.329 For example,
in one case involving the former category, an English lower court enjoined the continuation
of an English-seated international arbitration, on the grounds that an earlier English court
decision had held that no valid arbitration agreement bound the parties to the arbitration.330
The English court dismissed the argument that its action violated the United Kingdom’s obli-
gations under the New York Convention, reasoning:
“No question therefore arises of the court failing to comply with obligations undertak-
en pursuant to the New York Convention. In my judgment, it would be invidious to
leave it to the arbitrators to decide whether they should give preference to their own
earlier decision over that of the supervisory court on precisely the same subject matter.
The supervisory court has held in proceeding between [the parties] that there is no
basis upon which the arbitrators have been invested with jurisdiction to determine the
dispute between those parties. That should be an end of the matter.”331
English courts have emphasized that injunctions against a foreign-seated arbitration are rarely
granted,332 but have nonetheless occasionally exercised the authority to issue such injunctive
relief. Thus, one English decision enjoined a Texas-seated arbitration, opining:
326 Id. at 208 (“French courts have primary jurisdiction over the pending arbitration [seated in France]
and this court declines to extend its jurisdiction over those extraterritorial waters by enjoining the ongoing
arbitration in France”).
327 Cetelem SA v. Roust Holding Ltd [2005] 2 Lloyd’s Rep. 494 (English Ct. App.) (English courts retain
residual power to issue anti-arbitration injunction, as to both English and foreign arbitrations); Allied Marine
Ltd v. Vale do Rio Doce Navegacao SA [1985] 1 WLR 925 (English Ct. App.) (same); Claxton Eng’g Servs. Ltd v.
TXM Olaj-Es Gázkutató Kft [2011] EWHC 345, ¶48 (Comm) (English High Ct.) (“rare and exceptional cases
in which it is appropriate to grant an anti-arbitration injunction”); Elektrim SA v. Vivendi Universal SA [2007]
EWHC 571 (QB) (English High Ct.) (same); Intermet FZCO v. Ansol Ltd [2007] EWHC 226 (Comm)
(English High Ct.) (same).
328 See, e.g., Kazakhstan v. Istil Group Inc. [2007] EWHC 2729 (Comm) (English High Ct.); Huyton SA v.
Peter Cremer GmbH & Co. [1999] 1 Lloyd’s Rep. 620 (Comm) (English High Ct.). See also §27.03[B][3].
329 Excalibur Ventures LLC v. Tex. Keystone Inc. [2011] EWHC 1624, ¶54 (Comm) (English High Ct.)
(New York-seated arbitration enjoined on grounds that claimants had sought same relief in English courts: “It
is clear that the English courts have jurisdiction under §37 of the Senior Courts Act 1981 to grant injunctions
restraining arbitrations where the seat of the arbitration is in a foreign jurisdiction, although it is a power that
is only exercised in exceptional circumstances and with caution”). See also Excalibur Ventures v. Tex. Keystone
Inc. [2016] EWCA Civ 1144 (English Ct. App.); Claxton Eng’g Servs. Ltd v. TXM Olaj-Es Gázkutató Kft [2011]
EWHC 345, ¶48 (Comm) (English High Ct.) (granting injunction against arbitration in Hungary on grounds
of invalid arbitration agreement and exclusive English jurisdiction clause: “I am satisfied this is one of those rare
and exceptional cases in which it is appropriate to grant an anti-arbitration injunction”).
330 See Kazakhstan v. Istil Group Inc. [2007] EWHC 2729 (Comm) (English High Ct.) (granting injunction
against England-seated arbitration where arbitrator’s jurisdictional award upholding existence of valid arbi-
tration agreement had been previously annulled by English court). See also Clavel, Exceptional Circumstances
Allowing English Courts to Issue Injunctions Restraining Foreign Arbitration Proceedings, 2012 Paris J. Int’l Arb. 359.
331 Kazakhstan v. Istil Group Inc. [2007] EWHC 2729, ¶46 (Comm) (English High Ct.). The inconsistency
of this decision with the New York Convention is discussed below. See §27.03[B][3].
332 Excalibur Ventures LLC v. Tex. Keystone Inc. [2011] EWHC 1624, ¶55 (Comm) (English High Ct.) (“An
1413
“[I]n exceptional cases, for example where the continuation of the foreign arbitration
proceedings may be oppressive or unconscionable so far as the applicant is concerned,
the court may exercise its power under §37 to grant such an injunction. Those cir-
cumstances include the situation where the very issue is whether or not the parties
consented to a foreign arbitration, or where, for example, there is an allegation that the
arbitration agreement is a forgery.”333
An English court also enjoined a Hungarian-seated arbitration on the grounds that the valid-
ity of the putative arbitration agreement could be readily determined in English proceedings
and that there was, in addition to the alleged Hungarian arbitration agreement, an alleged
English forum selection clause.334 Another English court issued an anti-arbitration injunction
against arbitral proceedings seated in Singapore, concluding that there was a risk of inconsis-
tent judgments in respect of both the issue of arbitral jurisdiction and the underlying dispute
and holding that “[t]he balance of convenience is in favour of granting an interim injunction
to avoid unnecessary duplication and expense, so as to put the Singapore arbitration on hold
pending the determination of the jurisdiction issue by this court.”335 336337338
Other common law courts have also issued anti-arbitration injunctions, including against
arbitrations seated abroad, sometimes without the restraint generally exhibited by U.S. and
English courts. Thus, Canadian courts have also claimed (and exercised) the authority to issue
anti-arbitration injunctions against international arbitrations (including arbitrations seated
English court will be particularly slow to restrain arbitration proceedings where there is an agreement for the
arbitration to have its seat in a foreign jurisdiction and the parties have ‘unquestionably agreed’ to the foreign
arbitration clause. That is because, given the priority to be accorded to the parties’ choice of arbitration, and
the limited nature of the court’s powers to intervene under the provisions of the Arbitration Act 1996, the
court should not simply apply the same approach as for the grant of the normal anti-suit injunction.”) (quoting
Weissfisch v. Julius [2006] EWCA Civ 218, ¶33 (English Ct. App.)).
333 Id. at ¶69 (“continuation of such proceedings by Excalibur would be unconscionable, oppressive, vexa-
tious or otherwise an abuse of the due process of the court, and that the grant of such an injunction is necessary
to protect the Gulf Defendants’ legitimate interest in continuing the proceedings in England which is the natu-
ral forum for the litigation”).
334 Claxton Eng’g Serv. Ltd v. TXM Olaj–És Gázkutató KFT [2010] EWHC 2567, ¶17 (Comm) (English
High Ct.) (“In the circumstances of this case, where Claxton is contending that the contract is subject to an
exclusive English court jurisdiction clause, and TXM is contending that it is subject to a Hungarian arbitration
agreement, and both parties have agreed that the matter is capable of being resolved on the basis of the written
evidence before me, without cross-examination or further evidence, it seems to me to be wholly appropriate
that this court should resolve the threshold issue [of whether there is a valid arbitration agreement]”).
335 Golden Ocean Group Ltd v. Humpuss Intermoda Transportasi Tbk Ltd [2013] EWHC 1240, ¶¶61, 73
(Comm) (English High Ct.).
336 Lac d’Amiante du Canada Ltee v. Lac d’Amiante du Québec Ltee, [1999] RJQ 970 (Québec Ct. App.) (en-
joining foreign arbitration on grounds that right to arbitrate had been waived; rejecting contrary jurisdictional
determination by arbitral tribunal); Lac d’Amiante du Canada Ltee et 2858-0702 Québec Inc. v. Lac d’Amiante du
Québec Ltee, 2000 Int’l Arb. L. Rev. N-6 (Québec Ct. App.), Note, Shackleton.
337 Lin Ming v. Chen Shu Quan, [2012] HKCFI 328 (H.K. Ct. First Inst.).
338 World Sport Group Ltd v. MSM Satellite Pte Ltd, Civil Appeal No. 895/2014 (Indian S.Ct. 2014) (con-
sidering whether issues of fraud could be decided in arbitration proceedings); Radhakrishnan v. Maestro Eng’rs,
(2009) 3 SCALE 403 (Indian S.Ct.); MSM Satellite (Singapore) Pte Ltd v. World Sports Group (Mauritius) Ltd,
(2010) 112 Bom LR 4292 (Bombay High Ct.) (issuing anti-arbitration injunction against Singapore-seated
arbitration on grounds that allegations of fraud and corruption involved issues of Indian public policy); Union
of India v. Dabhol Power Co., Suit No. 1268/2004 (Delhi High Ct.). See also Sattar, National Courts and Inter-
national Arbitration: A Double-Edged Sword?, 27 J. Int’l Arb. 51 (2010). Compare CDC Fin. Servs. Ltd v. BPL
Commc’ns Ltd, (2003) 12 SCC 140, 144 (Indian S.Ct.).
1414
abroad).336 Similarly, courts in Hong Kong,337 India,338 Pakistan,339 Bangladesh,340 Malaysia341

and the Caribbean342 have issued anti-arbitration injunctions against international arbitral
proceedings, including arbitrations seated abroad. Some authorities have suggested that the
UNCITRAL Model Law forbids anti-arbitration injunctions (because of the absence of any
provision for such orders in the Model Law and because of the principle of judicial non-inter-
ference).343 Although there is substantial force to that suggestion, it is inconsistent with fairly
uniform authority in many Model Law jurisdictions recognizing judicial authority to issue
anti-arbitration injunctions.
At the same time, however, these decisions have emphasized the exceptional character
of anti-arbitration injunctions, particularly when issued against parties to foreign-seated
arbitrations:
“[T]he jurisdiction to grant anti-arbitration injunctions is wholly exceptional. It must
be exercised with caution and such injunctions will only be granted if the arbitral pro-
ceedings are vexatious or oppressive or … an abuse of the legal arbitral process.”344
Despite these authorities, courts in a number of other jurisdictions (particularly with civil law
systems) refuse to issue anti-arbitration injunctions. That includes courts in France, Switzer-
land and elsewhere.345
It is unclear whether decisions permitting injunctions against foreign-seated arbitrations survive the In-
dian Supreme Court’s decision in Bharat Aluminium v. Kaiser Aluminium, Civil Appeal No. 7019/2005 (Indian
S.Ct. 2012), holding that Indian courts lack the power to annul awards made outside India. See §17.04[C][8][e];
§22.02[E][1][a][i][5].
339 SGS v. Pakistan, 19 Arb. Int’l 182 (Pakistani S.Ct. 2002) (2003); Hub Power Co. v. Pakistan WAPDA, 16
Arb. Int’l 439 (Pakistani S.Ct. 2000) (2000). See Kerr, Concord and Conflict in International Arbitration, 13(2)
Arb. Int’l 121, 137 (1997) (describing Pakistani antisuit injunctions against arbitrations seated in Singapore and
England).
340 Saipem SpA v. Bangladesh, Decision on Jurisdiction in ICSID Case No. ARB/05/07 of 21 March 2007 (Ban-
gladeshi court purported to revoke authority of ICC tribunal).
341 Malaysia v. Nurhima Kiram Fornan, Originating Summons No. BKI-24NCvC-190/12-2019 (HC2)
(Malaysian High Ct.).
342 British Caribbean Bank Ltd v. Attorney Gen. of Belize, [2013] CCJ 4 (AJ) (Caribbean Ct. Just.).
343 Restatement of the U.S. Law of International Commercial and Investor-State Arbitration §2.30 Reporters’
Note a (2019); Bachand, The UNCITRAL Model Law’s Take on Anti-Suit Injunctions, in E. Gaillard (ed.), Anti-
Suit Injunctions in International Arbitration 87, 107-10 (2005).
344 Dunkeld Int’l Inv. Ltd v. Attorney Gen., C.A. No. 24/2011 (Belize Ct. App.) (reversing grant of anti-arbi-
tration injunction). See also Lin Ming v. Chen Shu Quan, [2012] HKCFI 328, ¶53 (H.K. Ct. First Inst.) (“I am
content to assume that there is jurisdiction to grant an injunction to restrain the continuance of [a locally-seat-
ed] arbitration … but that such jurisdiction must be exercised very sparingly and with great caution”); British
Caribbean Bank Ltd v. Attorney Gen. of Belize, [2013] CCJ 4, ¶¶37, 39 (AJ) (Caribbean Ct. Just.) (“Court exer-
cises heightened vigilance when asked to restrain international arbitration because the parties have contracted
to arbitrate their dispute”; “once the validity of the arbitration bargain has been established the court will only
grant an injunction to restrain the arbitration if it is positively shown that the arbitration proceedings would be
oppressive, vexatious, inequitable, or an abuse of process”).
345 See, e.g., Judgment of 29 March 2010, Equatorial Guinea v. Fitzpatrick Equatorial Guinea, Case No. 10-
52825 (Paris Tribunal de Grande Instance) (court has power to order provisional measures but not anti-ar-
bitration injunctions, which would interfere with arbitral proceedings); Judgment of 5 April 2012, DFT 138
III 304, 311 et seq., ¶5.3.1 (Swiss Fed. Trib.); Judgment of 2 May 2005, 23 ASA Bull. 728, 733 et seq. (Geneva
Tribunal) (2005); Judgment of 17 March 2010, BTA Bank v. Ukrsotsbank, Case No. 39/305 (Ukrainian High
Comm. Ct.).
Brazilian courts historically issued anti-arbitration injunctions, but have moderated this approach more
recently. See Lyra, Chapter 7: Anti-Suit Injunctions in Arbitral Disputes in Brazil, in T.A. Backsmann et al. (eds.),
1415
It is also sometimes said that antisuit (and anti-arbitration) injunctions are unknown in
civil law jurisdictions.346 That is no longer true: courts in Brazil,347 Ethiopia,348 and Indone-
sia349 have issued injunctions against foreign-seated arbitrations, often in circumstances in-
volving arbitrations against local state-related entities or the states themselves.
[B] Future Directions: Anti-Arbitration Injunctions Under New

York Convention
Anti-arbitration injunctions against international arbitrations that are putatively subject to
the New York Convention are very difficult to reconcile with the obligations imposed on
Contracting States by the Convention. Although the grounds for criticizing anti-arbitration
injunctions are complex, they argue strongly against the legitimacy, as well as the wisdom, of
such orders.
Some critics have challenged the legitimacy of any anti-arbitration injunction, on the
grounds that such relief: “appears to violate conventional and customary international law,
international public policy and the accepted principles of international arbitration.”350 At first
impression, this criticism appears to sweep too broadly.
It can be argued that, in principle, there is nothing in the New York Convention (or inter-
national law generally) that forbids national courts from enjoining a party from proceeding
with purported arbitral proceedings in the absence of a valid arbitration agreement: the Con-
vention arguably protects valid arbitration agreements, not nonexistent or invalid arbitration
agreements. Under this view, issuance of an anti-arbitration injunction against an arbitration
pursuant to a valid international arbitration agreement, which is protected by the Convention,
is a breach of Articles II(3) and III of the Convention351 – but other anti-arbitration orders
would not be.
International Arbitration in Brazil: An Introductory Practitioner’s Guide (2016).

346 Gaillard, The Misuse of Anti-Suit Injunctions, N.Y. L.J. (1 Aug. 2002).
347 Judgment of 19 April 2012, Energia Sustentável do Brasil SA v. SulAmérica Companhia Nacional de Seguros
SA, Case No. 0304979-49.2011.8.26.0000 (São Paulo Tribunal de Justiça); Judgment of 3 June 2003, Compan-
hia Paranaense de Energia v. UEG Arauncária Ltda, 21 RDBA 421 (Paraná Tribunal de Justiça) (2003). See also
Dos Santos, Arbitration in Brazil, 21 J. Int’l Arb. 453 (2004); Filho & Lee, Brazil’s New Public-Private Partnership
Law: One Step Forward, Two Steps Back, 22 J. Int’l Arb. 419 (2005). Compare Judgment of 6 April 2010, FAT
Ferroàtlantica SL v. Zeus Mineração Ltda, Case No. 0002546-67.2010.805.0000-0 (Bahia Tribunal de Justiça)
(vacating anti-arbitration injunction).
348 Partial Award in ICC Case No. 10623, 21 ASA Bull. 60 (2003). See also N. Blackaby et al. (eds.), Redfern
and Hunter on International Arbitration ¶7.57 (6th ed. 2015).
349 Judgment of 1 April 2002, Perusahaan Pertambangan Minyak Dan Gas Bumi Negara v. Karaha Bodas Co.,
Unreported Judgment (Jakarta Cent. Dist. Ct.) (forbidding enforcement of Swiss award against state-related
entity and purporting to impose $500,000 per day penalty for attempts to enforce), cited in Karaha Bodas Co.
v. Perusahaan Pertambangan Minyak, 264 F.Supp.2d 470, 474 (S.D. Tex. 2002). See also Himpurna Cal. Energy
Ltd v. Indonesia, Interim Award & Final Award in Ad Hoc Case of 26 September 1999 & 16 October 1999, XXV Y.B.
Comm. Arb. 109, 110 (2000).
350 Schwebel, Anti-Suit Injunctions in International Arbitration: An Overview, in E. Gaillard (ed.), Anti-Suit
Injunctions in International Arbitration 5 (2005). See also Gaillard, The Misuse of Anti-Suit Injunctions, N.Y. L.J. (1
Aug. 2002); G. Petrochilos, Procedural Law in International Arbitration 105 (2004) (“It is far from settled that
such injunctions should be regarded as a proper remedy at all, in particular under the New York Convention”).
351 Schwebel, Anti-Suit Injunctions in International Arbitration: An Overview, in E. Gaillard (ed.), Anti-Suit
Injunctions in International Arbitration 10-11 (2005) (“[T]he issuance by a court of an antisuit injunction that,
far from recognizing and enforcing an agreement to arbitrate, prevents or immobilizes the arbitration that seeks
to implement that agreement, is inconsistent with the obligations of the State under the New York Arbitration
1416
Similarly, it is difficult to accept the apparent view of Swiss courts (and some other au-
thorities) that anti-arbitration injunctions are irreconcilable with the principle of compe-
tence-competence.352 One Swiss court explained this rationale as follows:
“These anti-suit injunctions do not hurt principles of international public law because
they respect States’ sovereignty. However, they may contradict arbitration principles
and the negative effect of the ‘competence-competence’ principle, according to which
courts cannot decide about the jurisdiction of an arbitrator after he has already ruled
on it. Even if the negative effect of the competence-competence principle is not conse-
crated by the New York Convention (Article II(3)), the doctrine considers that using
an anti-suit injunction is contestable. … [T]he petitioners cannot by a request for in-
terim relief … request this court to grant an anti-suit injunction, which is contrary to
the Swiss legal system ….”353
It is doubtful, however, that the competence-competence doctrine can itself be sufficient
to justify a prohibition against anti-arbitration injunctions in international matters. That is
because, in most jurisdictions, national law permits courts to consider interlocutory juris-
dictional disputes concerning the existence, validity and scope of international arbitration
agreements; if the court exercises this (legitimate) authority and then concludes that there
is no valid arbitration agreement, it is impossible to see why, if only a single legal system is
concerned, an anti-arbitration injunction would not be appropriate notwithstanding the com-
petence-competence doctrine.
Despite these considerations, a different analysis is necessary in an international matter
subject to the New York Convention. There, the decisive point is that there are multiple na-
tional forums to consider and legitimately decide jurisdictional objections to putative interna-
tional arbitration agreements – which, for the reasons outlined below, makes it inappropriate
for any one state to preempt such decisions by issuing anti-arbitration orders unilaterally for-
bidding any arbitration at all.
The better view is that issuance of an anti-arbitration injunction against an international
arbitration subject to the New York Convention is generally contrary to the basic legal frame-
work established by the Convention; that conclusion applies regardless whether the anti-ar-
bitration order is issued by a court in the arbitral seat or otherwise. As discussed elsewhere,
the Convention’s structural regime includes no supranational authority to interpret and give
effect to the Convention’s provisions regarding international arbitration agreements (and
awards).354 Rather, individual Contracting States are responsible for carrying out the Conven-
tion’s provisions regarding the recognition of arbitration agreements and awards, including,
the responsibility to do so when other Contracting States have failed properly to fulfill their
obligations under the Convention355 (such as, when a Contracting State wrongfully purports
Convention. It is blatantly inconsistent with the spirit of the Convention. It may be said to be inconsistent with
the letter of the Convention as well, at any rate if the agreement to arbitrate provides for an arbitral award made
in the territory of another State.”).
352 See Bachand, Must An ICC Tribunal Comply with An Anti-Suit Injunction Issued by the Courts of the Seat
of Arbitration? – Comment on Salini Costruttori SpA v. Ethiopia, 20(3) Mealey’s Int’l Arb. Rep. 47 (2005); B.
Berger & F. Kellerhals, International and Domestic Arbitration in Switzerland ¶677 (3d ed. 2015); Gaillard, The
Misuse of Anti-Suit Injunctions, N.Y. L.J. (1 Aug. 2002); Stacher, You Don’t Want to Go There: Antisuit Injunctions
in International Commercial Arbitration, 23 ASA Bull. 640 (2005).
353 Judgment of 2 May 2005, 23 ASA Bull. 728, 734 (Geneva Tribunal) (2005).
354 See §1.04[A][1].
355 See §1.04[A][1]; §2.01[A][1][a]; §5.01[B][2].
1417
to deny recognition of an arbitration agreement or to wrongfully annul an award on jurisdic-

tional grounds).356
What the New York Convention’s structural regime implies is that Contracting States may
not interfere with the ability of one another to give effect to their respective obligations under
the Convention.357 That is, a state may not take steps to prevent another Contracting State
from recognizing agreements to arbitrate or arbitral awards, merely because it would not itself
accord recognition to the agreement or award. Put differently, a Contracting State may not,
through unilateral injunctive orders, preclude or hinder other Contracting States from consid-
ering jurisdictional issues under the Convention and from complying with their obligations
under the Convention.358 That is particularly true given the provisions of Article VII of the
Convention, which guarantee parties the right to more favorable national and treaty treatment
than that guaranteed by the Convention itself.359
It is thus neither the competence-competence doctrine nor the existence of obligations
to recognize arbitration agreements, standing alone, that preclude a Contracting State from
issuing anti-arbitration injunctions against international arbitrations seated in other Contract-
ing States. Rather, it is the multilateral international legal framework under the Convention,
in which all Contracting States have mutual obligations to recognize and enforce arbitration
agreements, in good faith, pursuant to international standards, that argues cogently against the
issuance of anti-arbitration injunctions enjoining international arbitral proceedings and award
enforcement, even though such injunctions might well be permissible and, arguably, sensible
in domestic matters.360
This conclusion is underscored by the principles of international comity and mutual
cooperation underlying the Convention’s structure and obligations. In the words of the U.S.
Supreme Court,
“concerns of international comity, respect for the capacities of foreign and transnation-
al tribunals, and sensitivity to the need of the international commercial system for pre-
dictability in the resolution of disputes require that we enforce the parties’ agreement,
even assuming that a contrary result would be forthcoming in a domestic context.”361
356 See §8.03[C][5] (non-recognition of foreign judgments); §8.03[C][6] (antisuit injunctions);

§27.02[B]; §27.03[B].
357 A state is of course free to permit litigation on the merits of the parties’ claims to proceed, if it con-
cludes that there is no valid arbitration agreement. It is also free to withhold support to what it regards as an
illegitimate process (e.g., in supporting constitution of the tribunal or assisting in the taking of evidence). It is
conceivable that an arbitration conducted as part of a criminal enterprise should be treated differently, in order
to prevent criminal acts from being committed or continued.
358 Thus, it would plainly be improper for a state to enjoin a party from taking steps to have an award, an-
nulled by that court, recognized in other jurisdictions. See §22.04[C]; §25.11.
359 See §1.04[A][1].
360 This also draws support from the general principle of judicial non-interference in arbitral proceedings,
discussed in §15.06[A]. This principle is directed towards arbitral proceedings pursuant to a valid arbitration
agreement, but nonetheless reflects the basic premise of the Convention that judicial intervention will be di-
rected towards either permitting a litigation to proceed on the merits (after concluding that there is no valid ar-
bitration agreement) or annulling or denying recognition of an arbitral award – but not otherwise intervening
in the arbitral process. See also Swanson, Antisuit Injunctions in Support of International Arbitration, 81 Tulane L.
Rev. 395 (2006).
361 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (U.S. S.Ct. 1985) (quoting Scherk v.
Alberto-Culver Co., 417 U.S. 506 (U.S. S.Ct. 1974)).
1418
Precisely the same rationale counsels against anti-arbitration injunctions where arbitration
agreements subject to the Convention are concerned.362
In any event, even if the power to enjoin arbitral proceedings were recognized in principle
to exist, that authority should be exercised with the utmost circumspection and only in rare
circumstances. In particular, injunctions against international arbitral proceedings subject to
the New York Convention (seated either locally or abroad) ought in principle never be issued
on anything other than jurisdictional grounds (e.g., the absence of a valid arbitration agree-
ment): claims that an arbitral tribunal is considering meritless or time-barred claims, or that an
arbitration is duplicative and vexatious, are not proper grounds for issuing an anti-arbitration
injunction or otherwise interfering with the arbitral process. Indeed, issuing anti-arbitration
orders on such grounds clearly violates principles of judicial non-interference in the arbitral
process, embodied in both the Convention and national arbitration legislation.363
Even where one party denies the existence of a valid arbitration agreement, an anti-arbi-
tration injunction should virtually never be issued (even assuming, contrary to the arguments
above, the power to do so under the Convention is acknowledged). That is because of the
risk of interfering with the arbitral tribunal’s assessment of its own jurisdiction or with other
national courts’ assessment of the validity of the arbitration agreement (particularly courts
in the arbitral seat). In virtually all instances, such determinations should be permitted to be
made by the arbitral tribunal, subject to review by courts of the arbitral seat.364
Moreover, any determination that a particular dispute is nonarbitrable or the subject of
mandatory national law or public policy (within the meaning of Article V(2) of the Conven-
tion) ought never to be grounds for enjoining an arbitration. Rather, in this event, a national
court can permit litigation of the putatively nonarbitrable dispute to proceed before it and
can refuse to recognize any arbitral award dealing with the subject, without the necessity for
issuing anti-arbitration injunctive relief. That approach avoids purporting to impose individ-
ual national conceptions of nonarbitrability and public policies on foreign states.365 Such an
imposition would be inconsistent with the Convention’s treatment of these matters as excep-
tional escape devices from individual Contracting State’s obligations to give effect to valid ar-
bitration agreements and awards, but not as grounds for more generally denying recognition
to such agreements and awards in other states.366
Where the parties have agreed to arbitrate jurisdictional objections367 then it is per se for-
bidden for national courts to issue an anti-arbitration injunction (again, even if one assumes
that such injunctions are permitted in some cases). An anti-arbitration order can only even
arguably be legitimate where the underlying agreement to arbitrate is nonexistent, invalid, or
inapplicable – conclusions which the parties’ agreement to arbitrate jurisdictional disputes
forbids a national court from reaching.
362 Compare Restatement of the U.S. Law of International Commercial and Investor-State Arbitration §2.30 Re-
porters’ Note b(i) (2019).
363 See §15.06 for a discussion of the principle of judicial non-interference in international arbitral
proceedings.
364 For this reason, among others, the Indian, Pakistani and Indonesian anti-arbitration orders noted above
were inappropriate. See §8.04[A]. It would also appear that they were violations of the New York Convention,
by virtue of forbidding the arbitration of disputes that were subject to a valid arbitration agreement.
365 See §4.05[A][1]; §4.05[C][5]; §6.01; §6.06; §11.04[A][3]; §12.01[B][2]; §15.04[A]; §22.02[E][2]
[b]; §§25.02[A]-[B] for a discussion of the role of national law and public policy in determining the scope of
nonarbitrability under Articles II and V of the New York Convention.
366 See §4.04[B][2][b][vi]; §4.05[A][1]; §§25.02[A]-[B]; §26.05[C][8][b][iv]; §26.05[C][9][a].
367 See §7.03[I][1].
1419
[C] Effect of Anti-Arbitration Injunctions on Arbitral Tribunals

When a national court issues an anti-arbitration injunction, delicate issues arise as to the arbi-
tral tribunal’s authority to continue with the arbitration. A number of tribunals have refused
to give effect to or comply with anti-arbitration injunctions, reasoning that the arbitrators have
an independent obligation to determine their own jurisdiction.368 One tribunal explained this
rationale as follows:
“[W]e are of the view that it would be improper, in light of our primary duty to the
parties, to observe the injunctions issued by those courts [in the arbitral seat], which
have already significantly delayed these proceedings, given that they have the effect
of frustrating the parties’ agreement to submit disputes to international arbitration.
… [T]he Arbitral Tribunal will continue to prosecute these arbitral proceedings in
accordance with its duty to the parties, in a manner consistent with their arbitration
agreement.”369
This reasoning was adopted by another tribunal, which refused to comply with an anti-arbi-
tration injunction issued by a court located in the arbitral seat (Indonesia), at the behest of
the respondent (the Republic of Indonesia), instead moving the situs of the arbitral hearings
to another state and continuing with the arbitration.370 The tribunal correctly reasoned that
the “purported injunction violates the Republic of Indonesia’s undertakings [in the parties
arbitration agreement],” and that “to prevent an arbitral tribunal from fulfilling its mandate
in accordance with procedures formally agreed by the Republic of Indonesia is a denial of
justice.”371 Less persuasively, the tribunal also denied that there was any conflict (or, in its
words, “struggle”) between “the Indonesian courts and the Arbitral Tribunal”: “to the con-
trary … [t]he Jakarta Court’s injunction purported to forbid pursuit of the arbitration [but]
the jurisdiction of that court is perforce limited to Indonesian territory.”372 Because the tribu-
nal conducted hearings outside Indonesia there was, in the tribunal’s view, no breach of the
Indonesian injunction.373
368 See, e.g., Partial Award in ICC Case No. 10623, 21 ASA Bull. 60 (2003); Decision in Unidentified ICC
Case, discussed in Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 106 n.155 (2d ed. 2005)
(tribunal proceeded with arbitration notwithstanding Ghanaian court order, in arbitral seat, holding disputes
nonarbitrable and enjoining arbitration); Saipem SpA v. Bangladesh, Decision on Jurisdiction in ICSID Case No.
ARB/05/07 of 21 March 2007 (ICC tribunal ignored injunction by Bangladeshi court); Himpurna Cal. Energy
Ltd v. Indonesia, Interim Award & Final Award in Ad Hoc Case of 26 September 1999 & 16 October 1999, XXV
Y.B. Comm. Arb. 109 (2000) (refusing to comply with anti-arbitration injunction issued by courts of arbitral
seat). See also Judgment of 16 April 2002, 21 ASA Bull. 120 (Swiss Fed. Trib.) (2003) (refusing to recognize
Jamaican anti-arbitration injunction and ordering stay of Swiss arbitration on grounds that arbitration should
be conducted in Jamaica).
369 Partial Award in ICC Case No. 10623, 21 ASA Bull. 60, 99 (2003).
370 See Himpurna Cal. Energy Ltd v. Indonesia, Interim Award & Final Award in Ad Hoc Case of 26 September
1999 & 16 October 1999, XXV Y.B. Comm. Arb. 109 (2000). See also §14.04[B][2].
371 Himpurna Cal. Energy Ltd v. Indonesia, Interim Award & Final Award in Ad Hoc Case of 26 September 1999
& 16 October 1999, XXV Y.B. Comm. Arb. 109, ¶73 (2000) (reciting Procedural Order of 7 September 1999).
372 Id. at ¶114.
373 This conclusion is far from clear. It is common in many jurisdictions for in personam injunctions to have
extraterritorial effect. G. Born & P. Rutledge, International Civil Litigation in United States Courts 551-71 (6th ed.
2018). It is difficult to imagine that the Indonesian court took a different view. The real basis for the tribunal’s
decision was that its independent assessment that a valid arbitration agreement bound the parties and that the
Indonesian court’s contrary conclusion was illegitimate.
1420
The same rationale that supports an arbitral tribunal’s refusal to comply with an anti-arbi-
tration injunction, whether by a court in the arbitral seat or otherwise, also justifies a tribunal’s
refusal to stay the arbitral proceedings on lis pendens grounds pending litigation of the parties’
jurisdictional dispute in a national court.374 Indeed, as discussed below, even where the parallel
litigation involves jurisdictional challenges to the arbitral tribunal’s authority, it has an inde-
pendent right – and obligation – to itself proceed to consider and decide the jurisdictional
challenges.375
374 See §27.03 for a discussion of the lis pendens doctrine in this context. As discussed above, most national
arbitration legislation recognizes the power of arbitrators to continue with an arbitration notwithstanding a
pending jurisdictional challenge in national courts. See §7.03[A]; §7.03[E][3].
375 See §8.04[C]; §27.03[B].
1421

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International Commercial Arbitration

International Commercial Arbitration

Volume I: International Arbitration Agreements

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Printed on acid-free paper.

Three-volume set: ISBN 978-94-035-2643-0

Volume I: ISBN 978-94-035-3040-6

© 2021 Kluwer Law International BV, The Netherlands

Printed in the Netherlands.

Contemporary international arbitration regimes have fundamentally altered this, making

§8.02 POSITIVE LEGAL EFFECTS OF INTERNATIONAL

[A] Sources of Positive Obligation to Arbitrate

[1] Positive Obligation to Arbitrate Under International Arbitration Conventions

5 See §1.01[C]; §5.01[B]; §8.02[C]; §8.03[C].

[2] Positive Obligation to Arbitrate Under National Arbitration Legislation

15 Inter-American Convention, Art. 1.

[B] Content of Positive Obligation to Arbitrate

20 See §1.01[A][2]; §1.02 (especially §1.02[B][3]); §1.04[E]; §2.02.

36 French Code of Civil Procedure, Art. 1464.

[C] Remedies for Breach of Positive Obligation to Arbitrate

dismissing or staying actions purporting to pursue such litigation62 or by antisuit injunctions

availability of such enforcement mechanisms can be especially important in the international

93 See §7.03[A][2][c]; §7.03[E][5][d]; §7.03[I][3].

Nonetheless, affirmative compliance with agreements to arbitrate is much preferable to a

[D] Choice of Law Governing Positive Obligation to Arbitrate

§8.03 NEGATIVE LEGAL EFFECTS OF INTERNATIONAL

[A] Sources of Negative Obligation Not to Litigate Arbitrable

arbitration regimes. See §15.08[EE]; §23.01[F]; §26.05[C][3][g].

[1] Negative Obligation Not to Litigate Arbitrable Disputes Under International

[2] Negative Obligation Not to Litigate Arbitrable Disputes Under National

[B] Content of Negative Obligation Not to Litigate Arbitrable

110 See §2.04[B].

[1] Obligation Not to Litigate Arbitrable Disputes

[2] Exclusivity of Arbitration

[3] Scope of Negative Obligations Under Arbitration Agreements

134 See §§8.03[C][1]-[2].

Other authorities are to the same effect.140

[C] Remedies for Breach of Negative Obligation Not to Litigate

[1] Mandatory Stay of Litigation

In other countries (principally civil law jurisdictions, including France,172 Switzerland,173

[2] Dismissal of Litigation

[3] Arguable Exceptions to Mandatory Stays or Dismissals of National Court

[4] Discretionary Stays of Related Litigation

approach, including both Model Law212 and other213 jurisdictions.

[5] Non-Recognition of Judgments

219 Id. at ¶65.

violation of a valid international arbitration agreement.226 225226

Judgments Act, 1982, §32.

[6] Antisuit Injunctions234

[a] Antisuit Injunctions Under English Law

[b] Antisuit Injunctions in Other Common Law Jurisdictions

245 See §8.03[C][6][e].

[c] Antisuit Injunctions Under U.S. Law

[d] Antisuit Injunctions in Civil Law Jurisdictions

[e] Antisuit Injunctions and EU Law

287 Id. at ¶¶48-51.

[f] Future Directions: Antisuit Injunctions in International Arbitration

[7] Monetary Damages for Breach of Obligation Not to Litigate Arbitrable

§8.04 COURT ORDERS ENJOINING ARBITRATION: ANTI-

[A] Anti-Arbitration Injunctions Issued by National Courts

abroad).336 Similarly, courts in Hong Kong,337 India,338 Pakistan,339 Bangladesh,340 Malaysia341

[B] Future Directions: Anti-Arbitration Injunctions Under New

International Arbitration in Brazil: An Introductory Practitioner’s Guide (2016).