On Anti-Enforcement Injunction

The recognition and enforcement of foreign judgment is a significant issue in international civil and commercial dispute resolution.There are two possible results:the positive result is to "recognize and enforce the foreign judgment"while the negative result is to " fail to recognize and enforce the foreign judgment".The negative result may be aggravated as anti-enforcement injunction issued in one specific region or even in whole globe.Therefore,the research of anti-enforcement injunction plays an important role in the field of recognition and enforcement of foreign judgments.This article consists of five parts.The first part introduces the chronological development and legal basis of issuing anti-enforcement injunction,especially in the United Kingdoms and the United States.The first anti-enforcement injunction was issued in Ellerman Lines v Read rendered by the Court in the United Kingdoms in 1922,pursuant to the principle of equity.By 21st Century,it has been confirmed that 1981 Senior Courts Act empowers the British Courts the right to issue anti-enforcement injunction.Meanwhile,it seems to be chaotic regarding the attitudes towards anti-enforcement injunction in different courts in the United States.For instance,the Ninth Federal Circuit Court regarded Uniform Declaratory Judgment Act and Uniform Foreign-Country Money Judgment Recognition Act as the authority to issue anti-enforcement injunction,while the Second Federal Circuit Court issued anti-enforcement injunction in accordance with the remedy of equity set forth in Racketeer Influenced and Corrupt Organizations Act.The second part of this article discusses about the classification of anti-enforcement injunction.Courts in different countries tend to have different understanding about the classification of anti-enforcement injunction,including anti-suit injunction,interim relief and declaratory judgment.In the case of Ecobank Transnational Inc.v.Tanoh,England Commercial Court classified anti-enforcement injunction as anti-suit injunction.In the case of Kyrgyzstan v Stans Energy Corp,Moscow Commercial Court classified anti-enforcement injunction as interim relief.In the case of Shell Oil Co.v.Franco,the Ninth Federal Circuit Court classified anti-enforcement injunction as declaratory judgment.The third part of this article analyses the prerequisites and conditions of issuing anti-enforcement injunction.Based on the existed cases involving with such injunction,it can be concluded the three prerequisites of issuance of anti-enforcement injunction:a judgment creditor has received a favorable judgment in a parallel litigation;both parties have violated the dispute resolution clause,including arbitral clause and exclusive jurisdiction clause;there is corruption or no due process in the litigation.Besides,Judges are expected to consider four elements when issuing anti-enforcement injunction:application in a proper time;irreparable damages;the big possibility of winning in merits;proportionality.The fourth part of this article analyses the legal effect and cross-border recognition of anti-enforcement injunction.There are three legal effects of anti-enforcement injunction:to balance the litigation positions between creditor and debtor;to produce the effect of warranty in the process of enforcement;to avoid potential problem of enforcement rotation.On top of that,there are two viewpoints regarding cross-border recognition according to the different classification of anti-enforcement injunction:if the anti-enforcement injunction is classified as the anti-suit injunction,then it has no cross-border effect;if the anti-enforcement injunction is classified as the interim relief or declaratory judgment,then it has cross-border effect.The last part of this article illustrates the comments of anti-enforcement injunction and analyses the possibilities of issuance and recognition of anti-enforcement injunction in China.With regard to its positive comments,anti-enforcement injunction respects other countries' judicial sovereign and plays the role of warranty in the process of enforcement.However,anti-enforcement injunction has double standards towards international comity in issuance and recognition.Meanwhile,it is likely to encounter huge obstacles in cross-border enforcement.In Chinese judicial practice,Chinese courts have not heard the cases involved with anti-enforcement injunction.Through the analysis,it is concluded that there is slight chance for Chinese courts to issue and recognize anti-enforcement injunction.