In this article, we want to focus on the so-called anti-suit injunctions, as it could be surprising that a judicial decision issued abroad may have an effect in your jurisdiction, without a recognition proceeding. In a short phrase, we could define antisuit injunctions as “precautionary measures to order not to sue," although as we will see, they also could be defined as "precautionary measures to order the withdrawal of a lawsuit already filed." Anti-suit injunctions have been mostly granted in Common Law systems, but not in Civil Law systems at least as far as we know.
An example may help us to comprehend the effect of the anti-suit injunction in cross border cases:
Imagine an ongoing trial in a court in the U.S., where Patricia is the plaintiff and Daniel is the defendant. Patricia believes that Daniel will most likely sue her in Chilean courts in a new trial which, according to Patricia, will be related to the existing one in the United States.
Then, Patricia requests an anti-suit injunction before a U.S. court with the purpose that a U.S. judge orders Daniel not to sue her in Chile. It is also possible that both trials could be ongoing at the same time, one in the U.S. and the other in Chile. In that case, Patricia could file its anti-suit injunction, aiming the judge to order Daniel to drop his claim in Chile.
It is important to note that if Daniel resides in the U.S. and the antisuit injunction is granted, Daniel could be accused of being in contempt, with the usual effects that a contempt entails in any country in the world, meaning arrest and fines. Consequently, Daniel would be forced to withdraw or not initiate his action in Chile to avoid such compulsory measures.
By this way to proceed, through an anti-suit injunction, Patricia achieves a foreign resolution that that could produce its effects in Chile, without going to a previous exequatur process in Chile.
The situation described in the example could affect the right to effective judicial protection, which exists in most countries and is normally protected at a constitutional level. Such right states that the state/government must give any person, regardless of nationality, the right to go to court, in order to protect his or her rights and legitimate interests, so that the court—through a final enforceable judgement—can decide the conflict that has been presented before it.
The right to effective judicial protection is the constitutional response to the prohibition of self-composition, and one of the foundations of our civilization. If the state has removed the self-composition from individuals, it is obliged to guarantee them an independent mechanism for conflict resolution.
Does an anti-suit injunction have any effect in Chile?
Every time we have discussed this matter with distinguished colleagues, the first thing they tell us is: “What are you worried about? Our Supreme Court will never grant an exequatur of judgment with an order to desist from a lawsuit." What our colleagues are not seeing is that when someone requests an anti-suit injunction, the purpose is to avoid or to circumvent the courts of another jurisdiction (in this case Chileans).
In fact, once the anti-suit injunction is granted, it is a binding ruling addressed—in the example—to a resident of the United States, so that if he still files his claim in Chile or does not withdraw a claim already filed, he will be exposed to the consequences of contempt of court, which, as in most countries, involves possible arrests and fines. Even if its final goal is to produce an effect in Chile, you have to remember that it is a direct order to a U.S. resident; therefore, the chances to act differently are practically zero.
The withdrawal of a claim already filed requires a request from the plaintiff, so a positive act is needed to actually make the withdrawal. In this sense, if in compliance with an anti-suit injunction, a person withdraws in Chile a claim already filed, there is no doubt that a legal effect of a foreign injunction has been produced in Chile. The case of the prohibition to sue is different since the future claimant not to sue constitutes an abstention, which makes it difficult to prove even if there was a genuine intention to sue. And if there was, its non-filing was due to the anti-suit injunction or not. In the end, in this last case it would be more difficult to know if the anti-suit injunction has effect in Chile or not, but it could still be proven from the background of the specific case.
In both cases, we could have at least a well-founded suspicion that a foreign judicial decision has produced effects in a local jurisdiction without passing through the local courts, cutting the possibility of a person to legitimately going to court, which at least in Chile and as we understand it is in many Latin American countries, constitutes an obstacle or limitation to the guarantee of access to effective judicial protection that cannot be tolerated.
Florencio Bernales and Raimundo Moreno are partners at Cariola Díez Pérez-Cotapos in Santiago, Chile.
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