One of the prevailing myths of transnational litigation is that U.S. courts are not only ready but extremely willing to use antisuit injunctions to preclude parties from filing or pursuing proceedings elsewhere in the world. In fact, anti-suit injunctions (sometimes referred to as "stays" of litigation) are considered an extraordinary remedy in the United States, and the general rule is that "parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until judgment is reached in one which can be pled as res judicata in the other." While this approach, often referred to as the "first to judgment" rule because the first judgment to be rendered can bind the second court pursuant to the principles of res judicata, has its problems (for example, it can be difficult at times to determine whether and to what extent a particular decision should be given res judicata effect in both cross-border litigation and arbitration), it avoids what is thought to be the unseemly "race to the courthouse" that is an inherent element of a first-to-file approach (lis pendens). Although U.S. courts may be loath to issue anti-suit injunctions, it can be difficult to anticipate when such motions will be granted, since the standards in this area of law are both ambiguous and fragmented. While a comprehensive analysis of all the relevant issues is impossible within the scope of this National Report, the following discussion nevertheless seeks to provide an overview of the relevant issues and authorities.
This Report is divided into two Parts, one focusing on anti-suit injunctions in purely judicial matters and one focusing on anti-suit injunctions in matters involving arbitration. Although anti-suit injunctions involving arbitration are often considered analogous to those arising solely in litigation, some differences do exist.
S. I. Strong,
Anti-Suit Injunctions in Judicial and Arbitral Procedures in the United States, 66 American Journal of Comparative Law 153
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