Effect of Anti-Suit Injunction in Cross Border Litigation

What is the purpose of an anti-suit injunction, and how can it work with cases in different countries?

Anti-Suit Injunctions in Cross Border Cases

Cariola, Díez, Pérez-Cotapos

April 15, 2020 08:00 AM

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 courtthrough a final enforceable judgementcan 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 addressedin the exampleto 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.

Related Articles

A Global Approach to Settlement

by Bradley A. Klein, Gretchen M. Wolf, Mayra C. Suárez and Peter Y. Cheun

The Department of Justice, in pursuit of companies whose transgressions cross borders, increasingly credits other countries’ fines to avoid “piling on.”

A Global Approach to Settlement

Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation

by Justin Smulison

When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.

Gold Indoor Sprinkler Heads on Red Background

Will Recent Boeing Settlements Create Tailwinds In Corporate Law?

by Justin Smulison

Prominent litigation against Boeing is setting a precedent of accountability, professionalism and commitment among company boards as well as ushering ESG further into the courtroom to help monitor and prevent safety issues.

Recent Boeing Settlements and Corporate Law

Colorado's Best Lawyers 2022

by Best Lawyers

Our 2022 Colorado's Best Lawyers publication features top-ranked legal talent in Boulder, Denver and Western Colorado.

Colorado's Best Lawyers 2022

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries

by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

The Best Lawyers in Chile™ 2022

by Best Lawyers

The results include an elite field of top lawyers and firms.

The Best Lawyers in Chile™ 2022

Road to Somewhere

by Mark LeHocky

How can attorneys take steps to improve settlement efforts and avoid unpleasant surprises as they map out a dispute resolution? One litigator-turned-general counsel-turned mediator (with some help from a distinguished rock star) points the way forward.

Improved Dispute Resolution Settlement

Look for the Zoom Label

by Anne R. Yuengert and Matthew C. Lonergan

Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?

Virtual Platforms Replacing Work Interactions

Discovery in the Time of COVID-19

by H. Barber Boone

The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?

The Impact of COVID-19 on E-Discovery

Busting a Trust

by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

The Next Chapter

by Patrick M. Shelby

Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?

COVID-19's Impacts on Bankruptcy Procedures

Phoning It In

by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Compelled to Compete

by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Meeting Halfway

by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

Look Out Below

by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Summer Voting Season Is Here!

by Best Lawyers

Summer 2021 voting is open to all lawyers listed in Best Lawyers in Chile, Colombia, Peru, Brazil, Mexico, Portugal, South Africa and Spain.

How To Vote On Your Best Lawyers Ballot

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Best Lawyers: Ones to Watch in Canada 2023

by Best Lawyers

The year 2023 marks the second edition of Best Lawyers: Ones to Watch in Canada, highlighting professionals earlier in their legal careers all across Canada.

Blue background with white stairs formed out of lines

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

All Eyes to the Ones on the Rise

by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch™ in America tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Press and Publicity: How Television and Social Media Impact Legal Careers

by Justin Smulison

In recent years, with social media giving minute by minute reporting, many lawyers are finding themselves thrust into a spotlight they never planned for. How are lawyers grappling with unexpected stardom, media coverage and merciless influencers?

Close up of camera at news station

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022