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The Anti-Suit Injunction

May 8, 2016

 

One of the many tools the international practitioner has is the anti-suit injunction. As its name my indicate, the anti-suit injunction is a court sanctioned decision that enjoins (prohibits) a party to an action from filing a suit in another jurisdiction.

 

At least as Israel is concerned, you could probably count on one hand the times a court has actually granted an action seeking anti-suit relief. Although Israeli courts seem to be clear as to the criteria of when an anti suit injunction may and should be granted, litigators have been unsuccessful in getting this relief on behalf of their clients.

 

One of the first case in Israel that dealt seriously with anti-suit jurisprudence is Priskel v. Bernstein. The Priskel Court found that Israeli courts have the authority to issue anti-suit injunctions, a somewhat novel idea in and of itself. The source of this authority, reasoned the Priskel Court, was a court's general authority to issue injunctions and mandatory injunctions pursuant to section 75 of the 1984 Courts Law.

 

However, the Priskel Court went on to say that the decision to issue the injunction is ultimately in the discretion of the court and should only be issued under extreme circumstances. 

 

What are those circumstances?

 

According to the Priskel Court, anti-suit relief should only be granted in cases where it has been proven that the suit that has been filed in the foreign court was vexatious. Courts should determine the vexatious nature of a foreign action by "using the principles of justice under the specific circumstances of each case".

 

In a more recent decision issued by the Tel-Aviv District Court (Finance Division), after going through the relevant case law, the court listed the factors that a court should use when determining to issue anti-suit relief: (1) potential injury to the parties in the event the relief is granted; (2) the intentions and goals at the base of the foreign suit; (3) whether the relief infringes upon a party's right to seek relief; (4) international comity; and (5) whether the relief would be enforceable. Queen Foreign Affairs Ltd. v. Hirshber (2016). 

 

In a serious of cases, courts have applied the Priskel Court's analysis and denied the injunctive relief by finding that the movant failed to persuade the court that foreign proceeding was vexatious or oppressive.     

 

In a series of decisions, courts have refrained from granting motions for anti-suit injunctions. Inter-Lab Ltd. v. Israel Bio Engineering (Supreme Court, 2003); Hannanel v. Adelson (Supreme Court, 2006); Keshkerov v. Pergamant (Supreme Court, 2013). 

 

Interestingly, however, the courts that dismiss these cases do so on the merits. In other words, the courts in the cases mentioned here made a finding that the foreign proceeding was not vexatious, oppressive or otherwise filed for purposes other than prevailing.

 

To the best of our knowledge, motions for anti-suit relief have not been dismissed on grounds for "forum non conveniens".

 

Except for one.

 

In a recent case that was filed in the Tel-Aviv District Court, the foreign plaintiff alleged that the Israeli defendant was filing vexatious law suits against him in the State of New York. The District Court dismissed the case on forum non conveniens grounds, without any hearing on the merits and without making any finding whether the foreign proceeding were indeed vexatious or oppressive. 

 

Although the plaintiff appealed the decision before the Supreme Court of Israel, the court refused to reverse the District Court's decision given that it did not find that the lower court abused its discretion. The Supreme Court failed to justify its decision and did not explain under what circumstances anti-suit relief would be barred for forum non-conveniens grounds. 

 

 

 

 

 

 

 

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