Mian Zafar Iqbal Kalanauri
Advocate, Supreme Court of Pakistan | Fellow, CIArb (UK) | Accredited Mediator (CEDR, IMI, CMC-USA)
Abstract
This article critically examines the evolving doctrine of injunctive relief within the context of international arbitration, emphasizing the dynamic interplay between arbitral tribunals and national courts. It provides a comprehensive analysis of key forms of injunctive relief—namely anti-suit, anti-arbitration, and emergency injunctions—available at various stages of arbitration proceedings. Special focus is given to statutory frameworks such as Section 44 of the UK Arbitration Act 1996 and landmark decisions including AES Ust-Kamenogorsk and West Tankers, which have shaped the contours of judicial support for arbitration.
This article extends the doctrinal discourse through 2025, incorporating recent developments in institutional rules (e.g., ICC, LCIA, SIAC) and jurisprudence from key jurisdictions including the UK, USA, Singapore, UAE, EU, and Pakistan. It explores both the arbitral and judicial authority to grant injunctive relief, the strategic use of such remedies in transnational disputes, and the jurisdictional complexities that arise. The article concludes with a series of reform proposals aimed at fostering harmonization between court intervention and arbitral autonomy, ensuring that injunctive mechanisms remain both effective and respectful of party consent.
1. Introduction
Injunctive relief serves as a vital mechanism in international arbitration, safeguarding the integrity and practical effectiveness of arbitration agreements. In an increasingly complex landscape of transnational disputes, such relief is frequently invoked to restrain court proceedings initiated in breach of arbitration clauses (anti-suit injunctions), to halt improperly commenced arbitral proceedings (anti-arbitration injunctions), or to maintain the status quo pending the constitution of the tribunal or the issuance of an award.
The strategic function of injunctive relief is underscored by its dual accessibility—both from arbitral tribunals and national courts. This dual track, while enhancing flexibility, also raises intricate issues of jurisdiction, coordination, and potential overlap. The need to protect parties before, during, and after arbitral proceedings has made injunctive relief a vital procedural tool. In light of growing reliance on arbitration across diverse legal systems, the effective deployment and enforcement of injunctive remedies are critical to ensuring procedural fairness, party autonomy, and the efficacy of the arbitral process. This article sets the stage for an in-depth exploration of the legal foundations, jurisdictional challenges, and comparative practices surrounding injunctive relief in international arbitration.
2. The Legal Basis for Injunctive Relief in Arbitration
2.1 Statutory Framework (UK Context)
The main legislative source is the Arbitration Act 1996. Section 44 empowers English courts to grant interim measures including injunctions in support of arbitration proceedings. This power is subject to urgency and compatibility with arbitral tribunal jurisdiction.
2.2 Court Powers under Section 37 of the Senior Courts Act 1981
Even outside arbitration-specific provisions, courts retain inherent powers under Section 37 SCA 1981 to grant injunctions where “just and convenient.”
2.1 Legal Basis under UK Law
Section 44 of the Arbitration Act 1996 empowers English courts to issue interim injunctions in support of arbitration. Section 37 of the Senior Courts Act 1981 provides residual equitable jurisdiction. The seminal judgment in AES Ust-Kamenogorsk established that injunctions may be granted even absent pending arbitration.
2.2 Arbitral Tribunal Powers
Tribunals may grant interim measures under Section 38(3) and 39 of the Arbitration Act 1996. Institutional rules (e.g., ICC Art. 28-29, LCIA Art. 25) authorize tribunals to issue procedural orders and emergency relief.
3. Anti-Suit Injunctions
3.1 Concept and Purpose
Anti-suit injunctions are orders restraining a party from pursuing court litigation in violation of an arbitration agreement.
3.2 Landmark Case: AES Ust-Kamenogorsk
The UK Supreme Court in AES Ust-Kamenogorsk held that even absent active arbitration, a court can grant an injunction to protect the negative obligation not to litigate in breach of an arbitration agreement.
3.3 EU and Post-Brexit Developments
The West Tankers case restricted anti-suit injunctions within EU courts under the Brussels Regulation. However, with Brexit and the Brussels I Recast (Regulation 1215/2012) no longer applicable, English courts are regaining freedom to issue such injunctions in EU-related disputes.
4. Types of Injunctive Relief
4.1 Anti-Suit Injunctions
Used to restrain foreign court proceedings brought in breach of arbitration agreements. Supported in English law post-Donohue v Armco and The Angelic Grace. Post-Brexit, English courts may again issue such relief unrestricted by the Brussels I Regulation.
4.2 Anti-Arbitration Injunctions
Courts may restrain arbitral proceedings when arbitration is improperly invoked, undermining Kompetenz-Kompetenz. See Albon v Naza Motors and Claxton Engineering cases.
4.3 Emergency Relief
Most modern arbitral institutions allow emergency arbitrator appointments (ICC, SIAC, LCIA, DIAC). Courts assist in urgent interim protection, particularly before tribunal constitution.
5. Anti-Arbitration Injunctions
These restrain arbitral proceedings, often initiated where a party argues there is no valid arbitration agreement or jurisdiction.
5.1 Tension with Kompetenz-Kompetenz
Anti-arbitration injunctions challenge the doctrine of Kompetenz-Kompetenz—arbitral authority to decide on its own jurisdiction. Courts tread cautiously, typically intervening only in cases of clear abuse.
5.2 ICSID Perspective
In ICSID arbitration, tribunals view anti-arbitration injunctions as a violation of international obligations. National courts rarely intervene due to limited supervisory jurisdiction.
6. Emergency Relief and Institutional Rules
Institutional rules (e.g., Article 29 of ICC Rules, LCIA Article 9B) provide mechanisms for “emergency arbitrators” to grant urgent interim relief. Courts may supplement these mechanisms, especially where:
- The tribunal is not yet constituted,
- Enforcement powers are needed,
- Third parties are involved.
6.1 Injunctions Against Third Parties
Traditionally, courts hesitated to enjoin third parties to arbitration agreements. However, recent cases such as Cruz City v Unitech show increasing willingness to restrain third-party conduct where collusion or interference is shown.
7. Jurisdictional and Procedural Issues
Key procedural considerations include:
- Service out of jurisdiction under CPR PD 6B;
- Forum non conveniens and comity considerations;
- Delay and unconscionability as defences;
- Cross-undertakings in damages.
8. Comparative Overview
| Jurisdiction | Court Injunctions | Emergency Arbitrator | Arbitrator Power |
| England | Broad S. 44 powers | ICC, LCIA allow EA | S. 38-39 powers |
| Singapore | S. 12A IAA | Yes (SIAC Schedule 1) | Similar to UK |
| USA (FAA) | Limited but available | Yes (AAA, ICDR) | Less codified |
| ICSID | No court power | Tribunal has Article 47 power | ICSID exclusive |
9. Comparative Jurisdictional Insights
9.1 United Kingdom
- Arbitration Act 1996, Sections 44 and 38
- AES Ust-Kamenogorsk [2013] UKSC 35 affirmed injunctive relief to uphold negative obligations in arbitration agreements.
- Post-Brexit autonomy from ECJ’s West Tankers restrictions.
9.2 Singapore
- International Arbitration Act, Section 12A
- Broad discretion to grant interim injunctions. SIAC Rules support emergency relief. Judicial support evident in Malini Ventura v Knight Capital. [4]
9.3 United States
- No express statutory basis under FAA, but federal and state courts may issue anti-suit relief.
- Courts reluctant to interfere in foreign-seated arbitration but support domestic enforceability.
9.4 United Arab Emirates (DIFC/ADGM)
- DIFC Arbitration Law (Article 24), UAE CPC Articles 21 & 255
- Recognises both court and tribunal interim measures. DIFC-LCIA and DIAC offer emergency arbitrator provisions.
9.5 European Union
- ECJ judgment in Allianz SpA v West Tankers Inc prohibited anti-suit injunctions under Brussels I.
- Post-Achmea doctrine limits enforcement of investor-state awards within EU. Arbitration-friendly exceptions developing under Recast Regulation.
9.6 Pakistan
- Arbitration Act 1940 (outdated), with limited statutory support for interim relief.
- Courts grant injunctions under CPC Sections 94 & 151.
- Judicial reform efforts ongoing; proposed Arbitration Act 2025 includes Section 22 on interim measures (inspired by UNCITRAL Model Law).
10. Jurisdictional Challenges and Enforcement
- Service out of jurisdiction (CPR PD 6B in UK)
- Challenges of enforcing arbitral injunctions across borders
- Third-party injunctions allowed in exceptional cases (Cruz City v Unitech [2014])
9. Recommendations and Conclusion
The following are key recommendations:
- National courts should respect arbitral autonomy and limit injunctions to exceptional cases;
- International harmonization (e.g., via UNCITRAL) is necessary to reduce jurisdictional uncertainty;
- Institutional rules should continue expanding emergency mechanisms with enforceability guarantees;
- Greater judicial clarity is needed on third-party injunctions and jurisdictional thresholds.
- Harmonize domestic legislation with UNCITRAL Model Law 2006
- Broaden tribunal powers on interim and injunctive measures
- Promote enforceability of emergency arbitrator decisions
- Reform outdated laws (e.g., Pakistan’s Arbitration Act 1940)
- Encourage judicial restraint in granting anti-arbitration injunctions
The doctrine of injunctive relief in international arbitration represents a sophisticated yet continually evolving dimension of transnational dispute resolution. While its foundations are firmly embedded in established jurisprudence and institutional practice, its application remains jurisdiction-sensitive and procedurally diverse.
Injunctive relief continues to serve as a powerful instrument to safeguard the arbitral process, deter parallel proceedings, and ensure the effective enforcement of arbitration agreements. However, its successful invocation demands careful navigation of the delicate balance between judicial support and arbitral autonomy.
As international arbitration adapts to new challenges—including cross-border enforcement, the rise of emergency arbitration, and increased involvement of third parties—there is an urgent need for greater harmonization. The future of injunctive relief lies in fostering procedural coherence, expanding mutual recognition of interim measures, and reinforcing the cooperative role of national courts without compromising the core values of arbitration: finality, efficiency, and party autonomy.
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References
- Hakeem Seriki, Injunctive Relief and International Arbitration (Informa Law, 2015)
- Arbitration Act 1996 (UK)
- AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35
- Allianz SpA v West Tankers Inc Case C-185/07
- ICC Arbitration Rules 2021, Article 29
- SIAC Rules 2016, Schedule 1
- UNCITRAL Model Law on International Commercial Arbitration (2006)
- AES UST-Kamenogorsk Hydropower Plant LLP v UST-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35.
- The Angelic Grace [1995] 1 Lloyd’s Rep 87 (CA).
- Albon (Nigel Peter) v Naza Motor Trading Sdn Bhd [2007] EWCA Civ 1124;
- Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato KFT [2011]
- EWHC 345 (Comm).
- Malini Ventura v Knight Capital Pte Ltd [2015] SGHC 225.
- Extracts from Arbitration Act 1996 (UK), Singapore IAA, UAE DIFC Law
- Sample ICC Emergency Arbitrator Procedures