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Anti-Foreign-Suit Injunctions To Enforce Arbitration Agreements

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Chapter Summary

An anti-foreign-suit injunction is controversial because it constrains judicial proceedings in another sovereign country. It does so indirectly by controlling the actions of private parties. The enjoining court in one country (F1) orders a private litigant before it to suspend or terminate a legal proceeding in another country (F2)-on pain of sanctions that F1 will impose on the private party for disobedience. The injunction opponents do not disagree that parties should be held to their agreements and that arbitration agreements should be enforced. They look instead, however, to the courts of F2 to make that determination, not exclusively those of F1. Article II of the New York Convention deals with a State's obligation to enforce an arbitration agreement. Consider the perspective of private parties negotiating an international transaction who want to include a reliable and fully enforceable arbitration agreement and who want to avoid parallel proceedings.

Keywords:anti-foreign-suit injunction; arbitration agreement; judicial proceedings; New York Convention; private parties



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