English Court of Appeal on Anti-Suit Injunctions as Part of Enforcement Jurisdiction
On 20 December 2023, the English Court of Appeal gave private international lawyers interested in the relationship between private and public international law a small Christmas treat. It delivered a unanimous judgment (Vos MR, with Popplewell and Phillips LLJ agreeing) in UK P&I Club NV v Republica Bolivariana de Venezuela. This judgment addresses the question, within the context of a state immunity dispute, of whether an anti-suit injunction is part of the court’s adjudicatory or enforcement jurisdiction.
The court first found that:
there is no widespread, representative and consistent practice of states, accepted as a legal obligation, regarding injunctions, such as to constitute a rule of international law. Specifically, there is no rule of customary international law that classifies injunctions or anti-suit injunctions as part of a state’s adjudicative jurisdiction. That means that there is no rule of customary international law to the effect that states are not immune to injunctions. Different states have different approaches… The UK is not an outlier in adopting section 13(2)(a) [of the State Immunity Act 1978]. Moreover, an anti-suit injunction is not such a special a type of injunction that puts it into any special category such as to place it within the restrictive doctrine. ([48])
The court further concluded that:
an injunction granted by a court in England and Wales is indeed a coercive order. It threatens potential criminal and financial penalties for non-compliance. That is so whether or not the order is accompanied by a warning in the form of a penal notice. No sensible injunction could be granted if the order were to make clear that there would be no criminal or financial consequences for non-compliance. That demonstrates why an anti-suit injunction is indeed coercive unlike an order for damages. An order for damages has no coercive effect until an enforcement process is initiated. An injunction has a coercive effect immediately it is ordered, because it says to the defendant that it will incur penalties if it takes any step in contravention of it. ([50])
The conclusion that anti-suit injunctions were part of the courts’ enforcement jurisdiction meant that they did not fall within the restrictive doctrine of state immunity, applicable to adjudicatory jurisdiction as part of customary international law. Instead, section 13(2)(a) of the 1978 Act (“relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property”) fell “within the range of possible rules consistent with international practices”. As a result, it was not contrary to Article 6 of the European Convention on Human Rights.
Thanks for reporting on this case.
It is interesting to note that, in the US, the reporters to the Restatement on Foreign Relations Law explain that “courts in the US have considered orders directed to parties properly before them as exercises of jurisdiction to adjudicate rather than jurisdiction to enforce. Courts in the US routinely order such parties to take action outside the territory of the US.” (note to § 431) and then give examples of freezing orders and anti suit injunctions.
There are at least two issues with the judgment of the UK Court of Appeal. The first is the distinction in personam/in rem. If injunctions are enforcement mechanisms, how come English courts accept that they produce extraterritorial effects? The second is the failure to distinguish between the injunction and the sanction for non compliance.
Thank you for pointing this out, Gilles. When I was reading this case and writing this post, I had in mind another English Court of Appeal judgment – the one in Deutsche Bank AG v RusChemAlliance LLC [2023] EWCA Civ 1144 (https://www.bailii.org/ew/cases/EWCA/Civ/2023/1144.html), which I also covered on the EAPIL Blog (‘Are English Courts Becoming the World’s Arbitral Policeman?’, https://eapil.org/2023/10/24/are-english-courts-becoming-the-worlds-arbitral-policeman/). You might recall that, in this case, the court enforced an arbitration agreement providing for an arbitration seated in Paris by ordering the defendant to cease litigation in Russia commenced in breach of the agreement. This was justified on the basis that the court was simply enforcing contractual rights and obligations. Perhaps there is a way to reconcile all of this, but there seems to be a hint of good old English ‘cakeism’ here.