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506 ALAN SCOTT RAU
2.4.3. Antisuit Injunctions
The paradigm case is one in which
the parties had agreed to arbitrate (e.g., in
New York), but where the claimant instead
files suit in another jurisdiction (e.g.,
Mexico). Having decided that the claims
before the Mexican court “are properly the
subject of arbitration, not litigation”, an
American court with personal jurisdiction
may enjoin the claimants from proceeding
with the Mexican suit.
It has been said that the exercise of a
court’s discretion is indeed “virtually
mandated” because even forcing the
respondent “to litigate arbitrability in
Mexico when it is entitled to relief here
would defeat the parties’ clear choice of
forum as embodied in the arbitration
clause” (187). An order directing the parties
to arbitrate (188) may be useless unless it is
accompanied by a corollary order
preventing them from litigating elsewhere.
The latter is therefore often added as little
more than an afterthought (189).
Even less problematic, I should think,
is an injunction against pursuing an
arbitration where the court is convinced
that no valid agreement exists. It is
important to bear in mind that American
procedural law has been exceptionally
generous in providing an abundance of
devices through which challenges to arbitral
authority can be made. Legislation
“allows an objecting party to seek judicial
determination of the scope of consent
either before, during, or after an
arbitration” (190). As Justice (then Judge)
Breyer has remarked, to enjoin a party
from arbitrating where an agreement to
arbitrate is absent is nothing more than
“the concomitant of the power to compel
arbitration where it is present” (191). Vague
[its] instrumentalities”); cf. Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255 (2d
Cir. 2003) (judicial enforcement of interim arbitral order requiring prehearing security; assuming dubitante
that the FSIA applies to commercial arbitration, the posting of security constituted “the functional
equivalent of a prejudgment attachment”, but here it was the arbitration clause itself that satisfied the
“explicit waiver” requirement of § 1610(d); the contractual provision that the arbitrators “are relieved of all
judicial formalities and may abstain b m following the strict rules of law” conferred power on them to
award prehearing security).
(187) Newbridge Acquisition I, L.L.C. v. Grupo Corvi, S.A., 2003 WL 42007 (S.D.N.Y.). See also Curtis, Mallet -
Prevost, Colt & Mosle, LLP v. Garza-Modes, 762 N.Y.S.2d 607 (A.D. 2003) (former partner subject to New
York arbitration clause brought suit against firm in Mexico, asserting statutory claims that were not subject
to arbitration under Mexican law; held, injunction against further prosecution of the Mexican proceeding
was warranted; “New York’s policy favoring arbitration should always be given primacy over a foreign
country’s policy disfavoring arbitration where, as here, the parties’ relationship was centered in NewYork,
the parties have expressly agreed to arbitrate all disputes in New York, and the dispute involves only
private parties”); Northwest Airlines, Inc. v. R&S Co. S.A., 176 F.Supp.2d 935 (D. Minn. 2001) (court compelled
Minnesota arbitration and enjoined Lebanese proceeding brought by respondent; the “business decision”
to choose arbitration over litigation “would be undermined unless the Court invokes its injunctive
power”; failure to do so will also subject the p1aintiff”to the risk of simultaneous litigation in Lebanon, and
the corresponding risk and uncertainty of inconsistent results”).
(188) A court order to “direct” or “compel” arbitration - a rather unusual feature of American arbitration law - is
provided for by Federal Arbitration Act § 4, and, in Convention Cases, by FAA, p. 206.
(189) See, e.g., Srnith/Enron Cogeneration Limited Partnership, Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d
88, 99 (2d Cir. 1999).
(190) Grad v. Wetherholt Galleries, 660 A.2d 903, 908 (D.C.App. 1995) (state law).
(191) Société Genérale de Surveillance S.A. v. Raytheon European Management & Systems Co., 643 F.2d 863,
868 (1st Cir. 1981); see also Painewebber Inc. v. Fowler, 791 F.Supp. 821 (D. Kans. 1992) (two arbitrations