Article by Steven R. Swanson
This Article analyzes the controversial issues that erupt when parties to an international arbitration agreement try to avoid either their obligation to arbitrate or the enforcement of an arbitral award. In such cases, one party may seek to enjoin the arbitration process or annul the award. Seeking to prevent the issuance of the injunction or annulment, the opposing party may ask a United States court to grant an antisuit injunction against the foreign litigation.
This Article examines the policies that a court should consider in deciding whether to issue the injunction. The first is international comity, a doctrine of judicial restraint that requires courts to respect other countries' laws and judicial decisions in order to further international dispute resolution. The second policy concerns the favorable treatment that international arbitration has enjoyed in the United States since this country passed the Federal Arbitration Act and ratified the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Until recently, the courts have not considered the intersection of comity and a proarbitration bias in the international arbitration antisuit context. Several recent decisions in the United States Court of Appeals for the Second and Fifth Circuits have, however, directly addressed the conflict between those two compelling policies with mixed results. These decisions could, in some cases, seriously devalue both comity and arbitration policies. In particular, the author argues that U.S. courts should defer to the arbitral situs court's decision to annul an arbitration award unless there is some showing of wrongdoing or overreaching. Antisuit injunctions against actions in secondary states, on the other hand, should be tested by a balancing of the United States' interests, the secondary state's interests, and the need for a smoothly functioning system for international dispute resolution. The Article's thesis accordingly supports arbitration as a means for resolving international commercial disputes while upholding the integrity of comity in the transnational context.
About the Author
Steven R. Swanson. Professor of Law, Hamline University School of Law, Saint Paul, Minnesota. LL.M., Yale Law School; J.D., Vanderbilt Law School; A.B., Bowdoin College.
Citation
81 Tul. L. Rev. 395 (2006)