Anti-Arbitration and Anti-Suit Injunction: Core Concepts and Asian Perspectives

Abstract

The increasing importance of international commercial arbitration in Asia has created difficult questions concerning the respective roles of national courts and arbitral tribunals, particularly where parallel proceedings arise. Among the judicial measures relevant to this relationship are anti-suit injunctions (ASIs) and anti-arbitration injunctions (AAIs). Although both remedies may be employed to control competing or abusive proceedings, they operate differently: an ASI restrains litigation, whereas an AAI seeks to restrain the commencement or continuation of arbitration. These differences have significant consequences for party autonomy, arbitral jurisdiction and international comity. This article undertakes a doctrinal and functional comparison of the approaches adopted in Singapore, Hong Kong, India, China and Myanmar. These jurisdictions are selected to illustrate different legal traditions and different stages of development in judicial supervision of arbitration. The comparison focuses on the legal basis and threshold for injunctive relief, the treatment of competence-competence and party autonomy, and the extent to which courts balance judicial authority against arbitral autonomy and international comity.The analysis shows that AAIs generally attract greater judicial restraint because they may prevent an arbitral tribunal from exercising its jurisdictional function. ASIs, particularly in common law jurisdictions, have a more established role in protecting arbitration agreements against competing court proceedings. The comparative analysis also reveals materially different approaches across Asia: Singapore and Hong Kong possess developed injunction jurisprudence, India increasingly emphasizes restrained judicial intervention, China has developed a distinctive use of ASIs in transnational disputes, while Myanmar principally relies on the statutory referral and stay framework of the Arbitration Law 2016. The article argues that the legitimacy of either remedy should depend on a clearly established legal basis, necessity and proportionality, while giving appropriate weight to competence-competence, party autonomy and international comity. It further proposes a structured framework for judicial consideration of ASIs and AAIs in Asian jurisdictions.