A Comparative Study On Anti-Suit Injunction Tests In China And America

With the rapid development of China in highly international realms such as telecommunication,Chinese litigants and courts are facing increasing international parallel litigations.Against this background,Chinese courts have developed anti-suit injunction with the form of act preservation under Chinese law.The anti-suit injunction rules applied by Chinese courts,especially those concerning anti-suit injunction test,however,are sometimes complained by America and European Union.In order to reasonably evaluate and to further improve Chinese anti-suit injunction test,making the Chinese test better embodies the international credibility of Chinese legal system and promoting the construction of a fair international legal environment,this article conducts a comparative study on anti-suit injunction tests in China and America.The main body of this article consists of three chapters.The first chapter illuminates the anti-suit injunction test in China.Anti-suit injunction in China is a kind of act preservation,taking the form of maritime injunction and the form of act preservation in maritime cases and civil cases respectively.In maritime cases,courts skip the analysis of “maritime claim” sometimes,identify“wrong” on various bases,and normally identify “emergency” on the basis of litigation burden.In civil cases,courts skip the analysis of “likelihood of success”,analyze the parties and issues of parallel litigations when considering “difficulty of enforcement”,focus on loss of non-economic interest when considering “irreparable harm”,consider non-pecuniary harm to outweigh pecuniary harm when considering “balance of harm”,analyze nature of parties and impact on public interest when considering “public interest”,and analyze international comity when considering “other considerations”.The second chapter illuminates the anti-suit injunction test in America.Anti-suit injunction in America is a kind of injunction,but the general injunction test doesn’t apply to anti-suit injunction.Instead,the framework of anti-suit injunction test in America includes three parts: threshold requirements,factors favoring the issuance of anti-suit injunction and international comity.Specifically speaking,threshold requirements require identity of parties and identity of issues(or the fact that local suit is dispositive of the foreign one);factors favoring the issuance of anti-suit injunction includes threat to a policy of the issuing forum,vexation or oppressiveness,threat to the jurisdiction of the issuing forum and prejudice to other equitable considerations;analysis of international comity depends on specific rules developed in practice.The third chapter is the key chapter of this article,which compares the anti-suit injunction tests in China and America on the basis of the illumination made by the foregoing chapters.Anti-suit injunction tests in China and America have similar three-step frameworks.The common aspects shared by tests in China and America include: both tests can be concluded into a three-step framework;both tests exclude the requirement for preservation claim required by traditional preservation rules;both tests don’t require exhaustion of local remedies in place where the foreign parallel litigation is initiated.The difference between tests in China and America is that the tests take different stances as to relationship between analyses of “public or private interest” and “international comity”.The first step of the three-step framework is to consider prerequisites,restricting the case categories to which anti-suit injunctions are applicable.The common aspects shared by tests in China and America include: anti-suit injunctions are applicable to multi-fora cases only;both tests adopt “functionally the same test” when identifying the identities of parties and issues.The differences between tests in China and America include: the tests take different stances as to filing sequence;maritime injunction has additional requirements as to wrong and emergency;the tests take different stances as to the significance of prerequisites in anti-suit injunction analysis.In order to improve anti-suit injunction test in China,this article puts forward the following suggestions:requirement for filing sequence should be discarded;maritime injunction should not be used as anti-suit injunction in maritime cases,instead,act preservation in civil action or other institutions should be used as anti-suit injunction in maritime cases.The second step of the three-step framework is to consider public and private interest factors,analyzing whether there is public or private interest basis for issuance of anti-suit injunction.The common aspects shared by tests in China and America include: both tests include analysis of both public and private interest;the analysis of private interest of both tests includes evaluation of both the foreign parallel proceeding per se and its possible consequence;both tests fail to coordinate interest analyses of anti-anti-suit injunction on the one hand and anti-suit injunction in narrow sense and anti-enforcement injunction on the other.The differences between tests in China and America include: analysis of public interest functions differently in the tests in China and America;the tests take different stances as to “irreparable harm”;the tests take different stances as to “comparison of harm”.In order to improve anti-suit injunction test in China,this article puts forward the following suggestions: considering anti-suit injunction to be justified solely on the basis of evaluation of the foreign parallel proceeding per se should be avoided;foreign anti-suit injunction in narrow sense and foreign anti-enforcement injunction should be analyzed according to anti-suit injunction test in China when considering the issuance of an anti-anti-suit injunction,and anti-anti-suit injunction should not be issued when conformity is established;public interest analysis restricting issuance of anti-suit injunction should be incorporated into the international comity analysis,and public interest analysis favoring issuance of antisuit injunction should be set separately;analysis of “comparison of harm” should be preserved when anti-suit injunction is justified on the basis of private interest,but analysis of “comparison of harm” should be omitted when anti-suit injunction is justified on the basis of public interest.The third step of the three-step framework is to consider international comity,analyzing whether the impact of anti-suit injunction on international comity is moderate.The common aspects shared by tests in China and America include: both tests have developed specific rules concerning international comity,instead of requiring diplomatic evidence;the tests share some specific rules concerning international comity.Specifically,when it comes to some shared comity rules,it needs to be emphasized that China’s allowing the issuance of anti-suit injunction conforms to TRIPS Agreement and that China’s allowing the issuance of worldwide anti-suit injunction conforms to the Protocol on the Accession of the People’s Republic of China.Therefore,relevant complaints made by America and European Union are unfair.The differences between tests in China and America include: since Chinese rules and American rules provide differently as to filing time,Chinese courts and American courts may differ on the filing sequence;American courts have some specific rules not yet adopted by Chinese courts.In order to improve anti-suit injunction test in China,this article puts forward the following suggestions: judgment on filing sequence should be based on the time when the court accepts the complaint instead of the time when the court entertains the case;courts should further develop comity rules through legal practice.