Skip to main content Accessibility help
×
Home
Hostname: page-component-684899dbb8-p6h7k Total loading time: 0.25 Render date: 2022-05-24T10:08:01.092Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

Forum Non Conveniens and Antisuit Injunctions: An Update

Published online by Cambridge University Press:  27 February 2017

Rights & Permissions[Opens in a new window]

Extract

HTML view is not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

In the April 1997 issue of the Journal, I reported on three cases in which the response to an action brought in the court of one country led not to an answer, but to a countersuit in another country—for an antisuit injunction, a declaration of nonliability or both. One of the cases I discussed arose out of a controversy between an asbestos manufacturer, CSR, and a group of insurance companies, the Cigna Group, that may or may not have been obligated to defend and indemnify the manufacturer in respect of claims in the United States for product liability. The manufacturer brought suit in federal court in New Jersey, raising both contract and antitrust claims. The insurers, as I reported, succeeded in securing an antisuit injunction in the Supreme Court of New South Wales (a court of first instance), and thereafter in defeating a motion by the manufacturer to stay or dismiss, on grounds of forum non conveniens, the insurers’ action seeking a declaration of nonliability. I thought that outcome was wrong: in my view, the Australian court should not have stepped into the controversy, and the insurers should have brought their challenge to the jurisdiction and suitable venue of the New Jersey court in that court.

Type
Editorial Comment
Copyright
Copyright © American Society of International Law 1998

References

1 Andreas, F. Lowenfeld, Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litigation , 91 AJIL 314 (1997)Google Scholar.

2 Cigna Ins. Austl. v. CSR Ltd, Case No. 50133/95 (Aug. 15, 1995).

3 CSR Ltd v. Cigna Ins. Austl. Ltd, Nos. S119 and S120, 1996 (High Ct. Aug. 5, 1997) [hereafter Slip op.]. 4 The Court of Appeal of New South Wales denied leave to appeal from the decisions of Rolfe, J., in the Supreme Court, and the manufacturers thereupon applied for and were granted special leave to appeal to the High Court of Australia. Though technically only the refusal of the NSW Court of Appeal to grant leave to appeal was before the High Court, once the case was there the Court resolved to take up the underlying issues. The Court wrote:

The proper approach to the resolution of jurisdictional conflict between Australian and foreign courts is a matter of considerable importance. Moreover, . . . the potential for jurisdictional conflict has increased significantly in recent years. Given these considerations . . . , it is appropriate that the various questions of law raised in these appeals be fully considered whether or not they were raised before Rolfe J.

Id. at 38.

5 Id. at 41.

6 Id. at 47.

7 Compare Amchem Prods, v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R. 897, [1993] 102 D.L.R. (4th) 96.

8 That seems to be consistent with the reasoning of the House of Lords in British Airways Board v. Laker Airways Ltd, [1984] 3 W.L.R. 413, 1985 App. Cas. 58, which reversed the injunction issued by an English court against a Sherman Act proceeding in the United States, essentially because the injunction would have meant determining the outcome of a controversy that no court had heard on the merits.

9 See, in particular, Voth v. Manildra Flour Mills Pty Ltd, (1990) 97 A.L.R. 124, (1990) 171 C.L.R. 538.

10 Slip op. at 54.

11 Lowenfeld, note 1 supra, at 321–24.

You have Access

Save article to Kindle

To save this article to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Forum Non Conveniens and Antisuit Injunctions: An Update
Available formats
×

Save article to Dropbox

To save this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about saving content to Dropbox.

Forum Non Conveniens and Antisuit Injunctions: An Update
Available formats
×

Save article to Google Drive

To save this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about saving content to Google Drive.

Forum Non Conveniens and Antisuit Injunctions: An Update
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *