Boardroom Over Courtroom: How Global Corporations Enforce the Promise to Arbitrate

In cases where multi-national corporations make cross-border deals, they rarely trust domestic courtrooms to resolve their disputes. Instead, they explicitly agree to settle conflicts quietly within private boardrooms through international arbitration.

Skylines of the Central Business District, Singapore at dusk. Photo by Basile Morin/ Wikimedia Commons/ CC BY-SA 4

However, what if one of the business partners betrays this trust and makes their move toward the local court in order to get an advantageous ground for their case? This is where the ultimate corporate defensive shield comes into play: the Anti-Suit Injunction (ASI).

Being part of the recent celebratory conference hosted by the Hong Kong International Arbitration Centre (HKIAC) and Queen Mary University of London (QMUL) provided an opportunity to see how corporate lawyers all over the world use such techniques to safeguard their multi-billion dollar commercial agreements.

The rationale behind the shield: enforcing the corporate bargain

At its core, an ASI is a binding legal order designed to halt a counterparty from pursuing foreign court proceedings that directly violate their contractual promise to arbitrate. When two sophisticated commercial entities enter into an agreement, they are establishing a sacred pact to keep their disputes out of traditional litigation.

An ASI does not care about finding the most convenient forum or debating whether a foreign court technically possesses the jurisdiction to hear the matter. Instead, it prioritizes the integrity of the original business contract above all else, ensuring that a company’s baseline entitlement to its negotiated bargain is fiercely protected. However, deploying this strategic shield requires flawless timing and precision. Even the most clear-cut contractual right can be jeopardized if an applicant acts with undue delay or if the requested injunction heavily disrupts the legitimate interests of outside stakeholders.

Counter-mapping strategy: the rationale for anti-ASIs

If an ASI is the ultimate defensive shield, the “Anti-ASI” is the strategic counter-measure used when that shield is abused. An Anti-ASI is a specific legal order designed to restrain a party from obtaining or enforcing an ASI in a foreign court. This mechanism comes into play when a party tries to use a foreign court injunction maliciously, turning it into an abuse of contractual rights rather than a tool to protect a genuine arbitration agreement. Operating on the exact same legal logic as a standard ASI — just one step removed — the Anti-ASI ensures that tactical legal maneuvering cannot be used to completely hijack or distort the original dispute resolution process.

There are three major foundational pillars in order to maneuver through ASI. The first step that has to be taken is looking into the different legal avenues available for seeking an ASI since the entry route determines the entire course of action. Second, it becomes necessary to have knowledge about the different functions of national courts since domestic judicial powers tend to act as supervisors and/or implementers of the mechanism. Finally, one needs to consider the powers of arbitrators to issue ASIs within their own tribunals.

The arbitral tribunal: interim measures and preliminary orders

Under Article 23.3 of the HKIAC Rules and Article 17(2) of the UNCITRAL Model Law, an arbitral tribunal possesses explicit authority to grant interim measures. Strategically, these measures either maintain the current status quo pending the final dispute resolution, or compel a party to refrain from behavior that causes imminent harm to the arbitral process itself. To secure this relief, the requesting party must meet two strict thresholds: proving that the threatened harm cannot be adequately repaired later by financial damages, and demonstrating a reasonable possibility of succeeding on the ultimate merits of the case.

Furthermore, a party can request a “Preliminary Order” without giving prior notice to the opposing side to prevent them from frustrating the process. These orders are highly temporary, expiring within 20 days of issuance under UNCITRAL rules. While they are immediately binding on the parties involved, they do not constitute a final arbitral award and are not directly enforceable by national courts, serving strictly as short-term procedural tactical bridges.

The Role of National Courts: Article 17J of the UNCITRAL Model Law

The Rolls Building is located just off Fetter Lane in the City of London and is one of the venues used by the First-tier Tribunal (Charity) which was created in 2008 to hear appeals against decisions of the Charity Commission. Photo by Roger Green via Wikimedia Commons / CC BY-SA 4.0 (Used for illustrative purpose only)

Parallel to the power of arbitral tribunals, national courts play a critical supervisory role through Article 17J of the UNCITRAL Model Law. This provision explicitly grants a domestic court the exact same power to issue interim measures for an arbitration as it would for standard domestic court proceedings. Crucially, this judicial power remains intact irrespective of whether the formal “seat” or place of the arbitration is within that specific country’s territory or abroad. While the court applies its own local procedural rules to grant this relief, it is legally mandated to do so with a deep consideration for the specific, non-interventionist features of international arbitration, ensuring judicial assistance supports rather than disrupts the corporate arbitral process.

Emergency arbitration: schedule 4 of the HKIAC 2024 rules

In cases where there is a need for urgent relief before the creation of the actual arbitral tribunal, parties can initiate the Emergency Arbitrator Procedure under Schedule 4 of the HKIAC 2024 Rules. This application can be filed prior to, alongside, or immediately following the formal Notice of Arbitration. To ensure maximum speed in urgent commercial matters, HKIAC commits to appointing an emergency arbitrator within 24 hours, and the resulting emergency decision must be handed down within 14 days.

From a strategic enforcement perspective, an emergency decision is highly temporary; it automatically ceases to bind the parties once the main arbitral tribunal is constituted or renders its final award. Furthermore, because these urgent decisions are not classified as final arbitral awards under the New York Convention, their cross-border enforceability relies entirely on the domestic arbitration laws of the specific jurisdiction where enforcement is sought — such as the highly supportive frameworks found in Hong Kong, England, and Singapore.

Mapping the matrix: types of injunctive relief

International commercial arbitration utilizes six distinct injunction variants to manage cross-border conflict. Beyond standard ASIs which restrain foreign court cases, and Anti-ASIs that block abusive, non-contractual injunctions, parties can deploy Anti-Enforcement Injunctions (AEIs) to stop a competitor from executing a flawed court order or award. Conversely, an Anti-Arbitration Injunction halts the arbitral proceeding itself if the underlying clause is deemed invalid. For asset protection, tribunals leverage Mareva Injunctions — commonly known as freezing orders — to prevent a rogue partner from disposing of crucial property before a decision is reached. Finally, standard tribunal-ordered interim measures broadly require parties to act or refrain from acting to preserve status quo rights pending the final award.

The power of the seat: upholding arbitral integrity

The domestic court located at the chosen geographic “seat” of the arbitration acts as the primary supervising court with a fundamental duty to uphold the parties’ arbitration agreement. High-profile regional jurisdictions like Singapore and Hong Kong firmly recognize that the court of the seat holds exclusive supervisory jurisdiction over the entire arbitral process and its related procedural challenges.

Consequently, these courts will actively grant ASIs and AEIs to restrain unauthorized foreign proceedings unless extraordinary, compelling reasons dictate otherwise. To maintain the integrity of this framework, regional judiciaries strictly penalize non-compliance; for instance, if a party refuses to obey an issued ASI, supervising courts can outright reject their subsequent procedural applications, ensuring contractual promises are firmly enforced.

While the court of the arbitral seat holds primary jurisdiction, domestic courts where the contracting parties reside, conduct business, or possess tangible assets also maintain a parallel duty to uphold arbitration agreements. This means a non-seat court can step in to issue an ASI if it governs the substantive law of the underlying contract, even if the actual arbitration is seated in a completely different country.

When a counterparty completely bypasses their contractual forum to launch hostile litigation elsewhere, these accessory courts will actively exercise their equitable powers to grant ASIs and restrain the foreign proceedings. This expansion ensures that global corporate interests remain protected across multiple legal frontiers, preventing bad-faith actors from exploiting geographic loopholes to derail a contractually mandated corporate resolution.

Empowering the boardroom: arbitral authority to grant ASIs

The power to issue an ASI is not exclusive to national judiciaries; modern statutory frameworks increasingly equip the arbitral tribunal itself with the tools to police contractual breaches. Articles 17 to 17I of the UNCITRAL Model Law establish a global baseline for this capability, which is mirrored directly by institutional rules like Article 23.2 of the HKIAC 2024 Arbitration Rules.

Regionally, the major corporate hubs possess clear statutory backing to reinforce this boardroom control. For example, Section 12(1)(i) of the Singapore International Arbitration Act and Section 35 of the Hong Kong Arbitration Ordinance both explicitly construe a tribunal’s power to order “interim measures” as including full injunctive relief. Similarly, Section 48(5)(a) of the English Arbitration Act grants tribunals the same expansive power as a court to command a party to do or refrain from doing any act.

Strategically, regional judiciaries work hard to ensure these tribunal orders carry teeth without getting bogged down in endless courtroom appeals. The Hong Kong Court, for instance, heavily supports tribunal-ordered ASIs issued via interim measures, affirming that the enforcement of such interim orders is fundamentally non-appealable. By ensuring that a counterparty cannot easily tie up an arbitrator’s procedural order in the domestic courts, regional legal frameworks ensure that the contractually chosen arbitral forum remains the primary, undisturbed authority over the corporate dispute.

Overcoming the hurdles: the legal tests for granting an ASI

Supreme Court of the United Kingdom library. Photo by Colin via Wikimedia Commons / CC BY-SA 4.0 (used for illustrative purpose only)

Securing an ASI depends on passing through an ever-changing global legal regime built upon statutory criteria such as the English Senior Courts Act section 37 which allows for the granting of injunctions when it is deemed just and convenient. For every corporate entity hoping to obtain such an injunction, there are two main challenges that it needs to overcome. Firstly, it should have clear jurisdiction over the non-compliant party. Secondly, it should pass a number of strict criteria that justify court’s or tribunal’s intervention.

The procedural strategy for securing an ASI relies on categorizing the requested relief across two fundamental legal frameworks:

• Contractual vs. Non-Contractual: Determining whether the application is based on an explicit contractual breach or broader equitable grounds.
• Final vs. Interim: Distinguishing between temporary stop-gap measures and permanent, lasting restraint.

For an ASI to be granted under a contract, there are four elements that must be proven by the applicant. To begin with, the applicant must show a high probability of success in proving that the proceedings in the foreign court are a direct violation of the existing arbitration agreement. After demonstrating this contractual violation, the supervising court will usually grant the ASI automatically unless the respondent provides any substantial ‘strong reason’ for not doing so. Furthermore, tactical timing is essential; the application must be brought promptly before the foreign court proceedings become too far advanced. Lastly, the supervising court should be thoroughly convinced that the grant of ASI is entirely proper and convenient under the overarching circumstances, ensuring equitable principles align with contractual enforcement.

Injunction evaluation checklist

• The Breach Issue: The applicant must definitively prove a high probability that the parallel foreign lawsuit directly violates a valid, binding arbitration agreement.
• The Scope Issue: The court must verify that the specific subject matter of the foreign dispute falls squarely within the boundaries of what the parties originally agreed to arbitrate.
• The Strong Reason Issue: Once a breach is shown, the burden shifts to the respondent to prove an extraordinary, compelling justification as to why the injunction should not be issued.
• The Discretion Issue: The court exercises its final equitable judgment to ensure that granting the restraint is completely just, convenient, and appropriate under the circumstances.

Timing and tactical delay

• The Promptness Rule: An applicant must act with extreme urgency. Unjustified delay in seeking an ASI allows the foreign court to consume valuable judicial time and transactional resources, which serves as an independent, sufficient ground for a court to completely refuse injunctive relief.
• Progress over Weeks: The sheer number of days delayed matters less than the specific milestones reached in the parallel litigation. If a counterparty has been permitted to actively advance the foreign case onto its substantive merits, courts will heavily penalize the applicant’s sluggishness to block strategic “two bites at the cherry” litigation tactics.

Justifiable delay vs. enforcement

• Contextual Fairness: Courts assess delay based on the specific circumstances at the time, avoiding the use of 20–20 hindsight. If an applicant displays reasonable diligence, justifiable periods of delay are not given serious negative weight.
• Weighing Contractual Rights: Any alleged delay must be carefully balanced against the critical importance of enforcing the parties’ original choice of forum. Because a counterparty defendant is actively acting in breach of contract, courts lean towards clemency for the applicant to ensure the breaching party does not unfairly profit from their own non-compliance.

Core equitable standards: non-contractual injunctions

• The Justice Baseline: Relief is granted only when “the ends of justice require it,” specifically to restrain foreign litigation that is proven to be oppressive.
• A Higher Bar: This standard is significantly more nuanced than the contractual test, requiring a much higher evidentiary threshold from the applicant.
• The Comity Factor: Without an express contract to enforce, courts place much greater weight on international comity — the mutual respect between national legal systems — before interfering with a foreign court’s jurisdiction.

Anti-enforcement injunctions: principles and timing

While AEIs do not require a separate, special legal test beyond the standard requirements for an ASI, satisfying those standard benchmarks in an enforcement context is statistically rare. These orders are increasingly granted when courts fear a foreign judge might enter judgment regardless of a party’s attempt to stop the foreign case.

Crucially, a major legal distinction exists between asking for an AEI early on versus after a foreign judgment is already finalized. Seeking an injunction before judgment is considered far less intrusive to international comity because waiting until a foreign court finishes its process allows formal property rights to vest in the judgment creditor, making post-judgment interference a much steeper hurdle.

Establishing jurisdiction under civil procedure rules

Securing an ASI requires establishing proper jurisdiction over the respondent through established civil procedure pathways. Under procedural frameworks like CPR 62.5(1)(c ), a claimant can establish a gateway for serving arbitration claims out of the jurisdiction if they seek a remedy affecting an arbitration agreement and the seat of arbitration is located within that jurisdiction. Conversely, even when the arbitration seat is located abroad, applicants can utilize general, non-arbitration-specific service gateways under provisions like 6BPD paragraph 3.1(6)(c ) if the underlying contract or arbitration agreement is explicitly governed by the domestic law of the court.

For non-contractual claims alleging vexatious and oppressive behavior, while no specific standalone jurisdictional gateway exists, applicants can successfully establish service if an exclusive jurisdiction clause or arbitration agreement forms the core of the alleged misconduct, framing the claim as being “in respect of” that central agreement. Furthermore, under broader procedural provisions like 6BPD paragraph 3.1(4A), claimants can utilize a “piggy-backing” strategy to anchor additional related claims against a defendant if jurisdiction has already been properly established on closely connected facts arising from separate contracts.

Quasi-contractual ASIs: criteria and practical tests

• Derived or Conditioned Rights: Quasi-contractual anti-suit injunctions typically apply to rights emerging from subrogation, legal assignment, statutory direct actions, or third-party beneficiary claims.
• The Three Practical Questions: Tribunals evaluate enforcement viability by assessing whether the claimant is actively suing through the main contract, if their assertion is fundamentally inseparable from the original forum bargain, and whether they are trying to seize contractual benefits while evading the associated forum burdens.
• The Definitive Threshold: The absolute strongest case for an injunction occurs when the court determines that the asserted legal right and the original forum selection bargain travel completely hand-in-hand.

Comparative limits and final takeaways

While pro-arbitration hubs widely enforce anti-suit relief, distinct jurisdictional limits surface in alternative markets like Indonesia, where the Supreme Court has outright refused to enforce external arbitral awards containing permanent injunctions on the grounds that interrupting local court processes directly violates state sovereignty. This demonstrates that while remedies like sensitive anti-arbitration injunctions and defensive anti-anti-suit injunctions remain available to protect a chosen forum bargain, their global efficacy is highly contingent on the local court’s stance on state sovereignty.

To effectively evaluate any upcoming cross-border conflict, a diagnostic continuum categorizes claims based on how closely they link to the primary agreement. Claims brought under the contract activate the arbitration clause directly, while claims moving through the contract rely on derived or conditioned rights. Moving further away, claims navigating around the contract depend entirely on alternative characterizations and judicial discretion, whereas actions brought completely independently of the contract remain the absolute hardest to legally restrain.

Credits & Disclaimers

Golden Bauhinia Square outside the Convention and Exhibition Center, Wanchai. Photo by Cheung Yin on Unsplash (used for illustrative purpose only)

Event Source:

This article is an educational review of the live seminar “40th Anniversary QMUL SIA and HKIAC Celebratory Seminar Series — Session Four: Injunctive Relief and Anti-Suit Injunctions” organized jointly by the Hong Kong International Arbitration Centre (HKIAC) and Queen Mary University of London (QMUL).

Date & Time:

June 30, 2026 5:00 PM — 6:30 PM (GMT +08:00)

Featured Speakers & Presenters:

• Professor Julian Lew KC — Independent Arbitrator, Twenty Essex; Head, SIA (Opening & Closing Remarks)
• Joanne Lau — Secretary-General, HKIAC (Moderator)
• May Tai — Independent Arbitrator (Presenter)
• Simon Milnes KC — Barrister and Arbitrator, Twenty Essex (Presenter)
• Simon Chapman KC — Managing Partner, Disputes, Asia and Australia, Herbert Smith Freehills (Presenter)

Legal Disclaimer

This article is an independent educational commentary based on my attendance at the seminar, it reflects my personal notes and understanding as a first-year law student in Dehradun, India. It is published strictly for academic portfolio and educational purposes. It does not constitute formal legal advice, nor does it represent the official positions of the Hong Kong International Arbitration Centre (HKIAC), Queen Mary University of London, or the individual panelists.