Anti-arbitration injunctions [“AAI or AAIs ”] have been used as a tool for legal
protectionism. However, scholars have justified AAI based on the consensual nature of
arbitration. Indian courts have now gained the reputation of being anti-arbitration, due
to the frequent issue of AAI, and the recently developing murky jurisprudence around
interim AAI. The travaux préparatoires of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards [“New York Convention ”]do not render
much support to AAI. Similarly, the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States [“ICSID Convention”]
establishes a stricter approach to AAI. In this article, the authors analyse the legal
framework and approaches to AAI in India, Malaysia and other jurisdictions. The
authors demonstrate how Indian courts have conflated AAI with anti-suit injunctions
[“ASI ”], and hence broadened its scope. This position has further harmed the interest of
the parties with the recent issuance of interim AAIs. The authors have demonstrated
potential harmful effects of continuing on this path through a comparative analysis to
Malaysia. Malaysia has taken a liberal approach in issuing AAI, and conflated them
with ASI; thereby losing its status as a sought-after jurisdiction for arbitration. In
contrast, other jurisdictions such as the United States of America [“US ”] and the United Kingdom [“UK ”] have restricted the scope of issue of AAI in international commercial
arbitration. In light of this, the authors suggest that the principles of the ICSID
Convention can be transposed to the New York Convention with respect to the subject
matter of AAI. Further, it is imperative that India develops a more measured approach
to issuing AAI which is only based on exceptional grounds.
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