Antisuit Injunctions
My colleague Roger Alford has an excellent post up at Opinio Juris regarding the recent comings and goings in the Chevron Ecuador Litigation. See here for more.
My colleague Roger Alford has an excellent post up at Opinio Juris regarding the recent comings and goings in the Chevron Ecuador Litigation. See here for more.
This is not the typical anti-suit injunction directed against litigation; it is effectively a worldwide anti-enforcement order, trying to prevent plaintiffs from enforcing a judgment they have already won. Does anyone know if there is precedent for that?
Ralf: an anti-enforcement injunction was granted in Ellerman Lines Ltd v Read [1928] 2 KB 144 (CA), on the basis that the contract was governed by English law, D was British, and there was part performance in England. It is, however, widely acknowledged that this would no longer suffice, and indeed comity suggests that it will almost never happen (see Masri [2008] EWCA Civ 625 for that general point), and neither should it. Recent refusals by English courts include ED&F Man v Haryanto (No.2) [1991] 1 Lloyd’s Rep 161 and The Eastern Trader [1996] 2 Lloyd’s Rep 585.
So, in short, this is the first example of a successful worldwide anti-enforcement injunction, issued from a court without sufficient interest to do so, in recent history that I can think of.
Well, I’m not so sure: a breach of contract is a breach of contract, and its restraint by injunction is unremarkable. I would be surprised to think that Ellerman Lines v Read would not be followed today. True, an injunction will be less easy to obtain if there is no contractual breach to justify it (which may make the recent decision look more striking), and general equitable principle may oppose its grant if it would not be useful or effective, but this goes to discretion only. But I would not be as cautious about this as Martin may be.