The width and amplitude available to the Court in an anti-arbitration agreement is much narrower as against where an anti-suit injunction is sought in a matter before it.
In what circumstances will the court make an anti-arbitration injunction ?
The court will not restrain a party from having a matter arbitrated before a tribunal if there is no dispute that the parties are subject to a valid and binding arbitration agreement that a tribunal should determine a matter of that kind.
Is an anti-arbitration order just and convenient, and should the court exercise its discretion?
The principles governing anti-suit injunction may not necessarily apply to anti-arbitration injunction. In Excalibur Venture LLC V. Texas Keystone Inc., 2011 EWHC 1624 (Comm.) stresses upon the difference of approach between a normal anti-suit injunction and an injunction restraining arbitration proceedings.
Distinction between an anti-suit injunction and an anti-arbitration injunction.
The principles which apply to an anti- suit injunction will not necessarily apply to an anti-arbitration injunction. It is further important to note that the exceptional cases where arbitrations could be injuncted upon holding that the arbitration proceedings would be oppressive or unconscionable were regarded as those circumstances which would include the situation where the very issue was whether or not the parties had consented to the arbitration or where there was an allegation that the arbitration agreement was a forgery.
The judgment in Republic of India through Ministry of Defence Vs. Agusta Westland International Ltd.'s held that a suit for anti-arbitration injunction was maintainable. This judgment emphasized the fact that while this power is available, it is to be exercised sparingly.
Parameters for grant of anti-arbitration injunctions
If we attempt an encapsulation of the broad parameters governing anti-arbitration injunctions, they would be the following:
1. The principles governing anti-suit injunction are not identical to those that govern an anti-arbitration injunction.
2. Court's are slow in granting an anti-arbitration injunction unless it comes to the conclusion that the proceeding initiated is vexatious and/ or oppressive.
3. The Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata. If persuaded to do so the Court could hold such proceeding to be vexatious and/ or oppressive. This bar could obtain in respect of an issue of law or fact or even a mixed question of law and fact.
3. The fact that in the assessment of the Court a trial would be required would be a factor which would weigh against grant of anti- arbitration injunction.
4. The aggrieved should be encouraged to approach either the Arbitral Tribunal or the Court which has the supervisory jurisdiction in the matter. An endeavour should be made to support and aid arbitration rather than allow parties to move away from the chosen adjudicatory process.
5. The arbitral tribunal could adopt a procedure to deal with ―re- arbitration complaint‖ (depending on the rules or procedure which govern the proceeding) as a preliminary issue.