Mayank Satija and Vineet Kalra

Abstract: This article evaluates the intricacies of anti-enforcement injunctions as an equitable tool that has only recently marked its footing in the Indian jurisprudential landscape. It employs a comparative framework to situate the emerging Indian approach within broader global practice and flags the systemic ramifications inherent in their grant. Building on this comparative insight, the article contends that India ought to adopt a more circumscribed approach to the grant of such injunctions to ensure that they remain a narrowly tailored remedy rather than a routine procedural shield.  The piece concludes by proposing a set of guidelines aimed at facilitating a more effective and holistic balancing of equities in such applications.

Introduction

In the realm of transnational litigation, courts worldwide have fashioned a range of cross-border injunctive remedies to dispense effective justice, including anti-suit, anti-anti suit, anti-arbitration, and anti-enforcement injunctions. Among these, the anti-enforcement injunction         occupies a particularly potent position as it restrains a party from taking any steps towards enforcing a foreign judgment or an arbitral award.

 In India, the equitable remedy of an anti-enforcement injunction has been examined in only three judicial decisions, the latest being the Delhi High Court’s ruling in Honasa Consumer Limited v. RSM General Trading LLC (“RSM Trading”) on 20 August 2024. While this ruling marks a consequential development in this emerging area, the Indian jurisprudence on anti-enforcement injunctions remains in an early phase of doctrinal development, with its contours still taking shape.     In contrast, jurisdictions such as the United Kingdom and the United States (page 111) have engaged with and refined the contours of this special form of injunction over a much longer period.

This article examines the Indian judiciary’s emerging approach to anti-enforcement injunctions and finds that the current approach is marked by a liberal and permissive grant of such relief. It argues for a shift towards a more cautious framework grounded in circumspection, given the profound implications that anti-enforcement injunctions have on foreign judicial processes and the grave impact of the procedural delays inherent in such applications.  In doing so, this article proceeds in four parts. Part 1 examines the Indian decisions on anti-enforcement injunctions and distils the principles governing this remedy. Part 2 analyses the principle of comity and the threat posed to it by such injunctions. Part 3 highlights the grave ramifications of procedural delays inherent in such applications. Part 4 argues that the availability of an efficacious alternate remedy under the CPC further militates in favour of a cautious approach and concludes by proposing guiding principles that could help cultivate a more measured approach in subsequent cases.

1.1 Indian Jurisprudence on Anti-Enforcement Injunctions

The Delhi High Court’s decision in InterDigital Tech. Corp. v. Xiaomi Corp. (“InterDigital Tech”) marked a significant milestone in Indian jurisprudence, being the first Indian judgment to grant an anti-enforcement injunction. The case concerned InterDigital’s attempt to restrain Xiaomi from enforcing an anti-suit injunction issued by the Wuhan Intermediate People’s Court in China, which had prohibited InterDigital from pursuing its patent infringement action before the Delhi High Court. The decision is significant not only because it affirmed the jurisdiction of Indian courts to grant anti-enforcement injunctions, but also because it laid down ten guiding principles governing the issuance of both anti-suit and anti-enforcement injunctions. (para 88)

These principles collectively delineate the Indian legal test for anti-suit and anti-enforcement injunctions and provide structured guidance for future courts dealing with these injunctions. The first two principles pertain exclusively to anti-suit injunctions. Principle (iii) embodies a core foundation of injunctive relief, namely the prevention of palpable injustice. Principles (iv) and (v) emphasise the significance of the right to pursue legal remedies, effectively holding that any infraction of this right renders the foreign order “oppressive.” The sixth principle reduces the weight accorded to comity where the foreign order is offensive to domestic public policy or otherwise oppressive in nature. Importantly, it is principle (vii) that extends the discussion solely to anti-enforcement injunctions and states that such injunctions should not be treated as exceptional. Principle (viii) then identifies three illustrative situations in which an anti-enforcement injunction would be justified, namely, situations where the foreign judgment is obtained secretly, hastily, or fraudulently, or where the judgment remains unknown to the applicant until service. (para 88) By recognising these exceptional scenarios, the Court articulates a yardstick of grossly inequitable conduct that would warrant anti-enforcement intervention.

It is also imperative to take note of the Court’s significant observation regarding the legal nature of anti-enforcement injunctions, namely, its conclusion that they do not warrant a higher degree of circumspection than anti-suit injunctions, on the premise that the former involve comparatively limited interference with foreign judicial processes. (para 84) Principle (vii) reinforces this parity of scrutiny by stating that courts would not hesitate to grant an anti-enforcement injunction if the grounds for relief are made out. Subsequent to the judgment in InterDigital Tech, the Bombay High Court in Anupam Mittal v. People Interactive (India) Pvt. Ltd. (“People Interactive”) allowed an interim application seeking an anti-enforcement injunction as a temporary measure in a suit for a permanent anti-enforcement injunction, which had been filed by Anupam Mittal to resist a permanent anti-suit injunction issued by the Singapore High Court.

The Court held that an anti-enforcement injunction is simply a species of injunction and accordingly, its grant must satisfy the well-established three-pronged test of injunctive relief namely, the existence of a prima facie case, the balance of convenience, and the likelihood of irreparable harm. In referring to InterDigital Tech, the Court concurred with the general principles laid down therein, thereby marking a consistent judicial standpoint. (para 56) The fulcrum of the Court’s decision in granting relief was premised on the view that, where a foreign injunction offends domestic public policy, its enforcement may be resisted, and the principle of comity cannot be wielded to render a litigant wholly remediless. (para 56)

The common thread running through both decisions is that the courts granted anti-enforcement injunctions upon finding that the foreign anti-suit judgments had infringed the applicants’ paramount right of access to justice, which thereby rendered the foreign anti-suit orders “oppressive and vexatious.” In this sense, InterDigital Tech and People Interactive share a common rationale of safeguarding a litigant’s right to seek redress before a competent forum. Moreover, both decisions were consistent in treating the anti-enforcement injunction as a remedy not confined to exceptional circumstances.

Turning now to the third and most recent reported judgement dealing with anti-enforcement injunctions in RSM Trading before the Delhi High Court. This decision stands apart from the preceding two in the sense that the injunction in this case was sought to restrain the enforcement of a final decree passed by a Dubai court, rather than to resist a foreign anti-suit injunction order.

In this case as well, the Delhi High Court granted the anti-enforcement injunction; however, unlike InterDigital Tech and People Interactive, where such injunctions were issued to preserve the jurisdiction of Indian courts and uphold domestic public policy, the injunction in RSM Trading was granted to remedy a breach of the arbitration agreement. The Court found that RSM’s proceedings before the Dubai court were oppressive and vexatious from the outset and violated Honasa’s contractual right to arbitrate under the Authorised Distributorship Agreement[3] . (para 35)

1.2 The need for a Restrained Approach

Although well-intentioned and compelling, these decisions collectively reveal an emerging liberal approach that pays insufficient regard to the wider implications of anti-enforcement injunctions. The Indian courts have placed such injunctions on the same footing as ordinary injunctive relief, without recognising the distinct considerations that this category demands. This assimilation is further reinforced by a consistent judicial stance that such injunctions do not warrant exceptional treatment and, in fact, interfere less with foreign courts than anti-suit injunctions. (para 88) Unsurprisingly, in all three cases, the courts granted such relief without substantial reservation, reflecting an empirically permissive judicial posture.

It is respectfully submitted that this posture is detrimental, as it may lead to undesirable consequences. Anti-enforcement injunctions carry a uniquely intrusive character because of their potential to undermine the enforcement processes of sovereign foreign judicial systems. Crucially, they are sought only after a foreign judgment has already been rendered which marks the very last stage at which a party may seek relief against oppressive proceedings abroad. This temporal posture magnifies concerns relating to procedural delay and renders such injunctions inherently more consequential than their pre-judgment counterparts.

These features demonstrate that anti-enforcement injunctions must warrant a heightened standard of scrutiny and a shift towards a more cautious approach, rather than assimilation into the broader category of ordinary injunctive relief. If left unchecked, India’s emerging permissive stance risks diluting international comity and transforming anti-enforcement injunctions into routine defensive tactics susceptible to strategic forum manipulation.

The following segments examine the severity of these concerns in detail and argue for the need for such a cautious approach.

2.1 The Principle of Comity

In order to assess the extent of threat that Anti-enforcement injunctions pose to the principle of comity, it is essential to first understand the import of this doctrine.

The principle of comity requires domestic courts to extend due respect to the judicial determinations of foreign sovereigns. In India, a significant aspect of this principle is embodied in Section 13, read with Section 44A of the Code of Civil Procedure, 1908 (“CPC”), which predicates the recognition and enforcement of foreign judgments on the fulfilment of six substantive standards, centred on jurisdictional competence, adjudication on the merits, conformity with international and Indian law, adherence to natural justice, absence of fraud, and consistency with Indian public policy. Importantly, the Supreme Court in R Viswanathan v Rukn-Ul-Mulk Syed Abdul Wajid interpreted Section 13 to hold that it embodies a branch of the principle of res judicata. However, it clarified that a foreign judgment is conclusive only if it is rendered by a court of competent jurisdiction both domestically and internationally, and if the judgement directly determines the particular matter pleaded as res judicata.

The principle of comity has also been recognised and developed by the judiciary across diverse legal contexts. For instance, in Modi Entertainment Networkv. WSG Cricket Pt. Ltd. (2003)     , which affirmed the jurisdiction of Indian courts to issue anti-suit injunctions, the Supreme Court     , cautioned that such jurisdiction must be exercised sparingly and in deference to the principle of comity. (para 10) Similarly, in Alcon Electronics Pvt. Ltd. v. Celem S.A. of France, (“Alcon Electronics”) while examining the enforceability of an English interlocutory order under the CPC,the Supreme Court noted that comity requires due respect to foreign orders and judgments unless they fall within the expressly recognised exceptions to conclusiveness under the CPC. (para 19)

However, it is equally important to note that the principle of comity does not operate in an unbounded or untrammelled manner. Indian courts treat comity as a principle of respect rather than obligation. (para 42) Although foreign judgments are generally accorded due regard, comity yields where such judgements or orders conflict with domestic public policy (para 56), customary international law, (para 88) or particularly in family matters, the paramount welfare of the child. (para 31)

With this understanding of comity in mind, the implications of anti-enforcement injunctions for the principle of comity can be more accurately appreciated.

2.2 Heightened Impact on Comity

Anti-enforcement injunctions constitute a far greater intrusion on the principle of comity than other forms of injunctive relief. This is because they effectively impose a worldwide restraint on the judgment creditor from taking any steps towards enforcement, and thereby indirectly interfere with the authority of all states in which the judgement-creditor may seek enforcement to hear and adjudicate on the recognition of the foreign judgment under their own domestic frameworks. This worldwide effect becomes even more pronounced because such an injunction, by restraining any attempt at enforcement, can potentially interfere with the debtor’s assets located in and subject to the authority of foreign jurisdictions. In this sense, anti-enforcement injunctions pose greater comity concerns than anti-suit injunctions, which affect only a single jurisdiction.

This concern has been echoed in several leading foreign decisions. In the United Kingdom, the Court of Appeal’s judgment in Man (E. D. & F.) (Sugar) Ltd v. Yani Haryanto way back in the year 1990, while refusing to grant an anti-enforcement injunction,  recognised the extraterritorial impact of such injunctions, noting that they would, in effect, restrain enforcement efforts not only in England but also in the country where the judgment was rendered and in other jurisdictions. The concurring opinion delivered by Justice Mann stressed that it is the difficulties inherent in restraining the operation of foreign courts in recognising and enforcing judgments under their own legal systems that necessitate heightened caution. This concern ultimately weighed heavily with the Court in its decision to decline the injunctive relief.

This decision was subsequently relied upon in Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2002], where the English Commercial Court, while refusing to grant an injunction to, inter alia, require Okta to discontinue the foreign court proceedings and to set aside any judgment, decision, or order arising from those proceedings, reaffirmed that the jurisdiction to issue injunctions with potent extraterritorial effect must be exercised with great caution, as their use would otherwise run contrary to the principles of comity and “involve an indirect interference with existing or potential proceedings in a foreign court.” (para 205)

In the United States, a seminal decision which dealt with anti-enforcement injunctions is Chevron Corp. v. Donziger. This case involved an attempt by Chevron to resist the enforcement of one of the largest damages awards in history, approximately USD 9.5 billion, imposed by the Ecuadorian courts for environmental pollution in the Amazon. The United States District Court for the Southern District of New York initially granted a worldwide anti-enforcement injunction restraining the defendants from taking any steps to enforce the decree in any jurisdiction across the globe outside Ecuador. However,      this decision was later reversed by the United States Court of Appeal for the Second Circuit. One of the principal grounds for discharging the anti-enforcement injunction was that such relief would have an impermissible and expansive impact on the judicial systems of sovereign nations worldwide. (page 23)

That said, the worldwide impact of anti-enforcement injunctions becomes particularly pronounced when they are issued to restrain the enforcement of a final decree passed by a foreign court, as was the case in RSM Trading. By contrast, this global effect on foreign legal systems is far less pronounced when a domestic court issues an anti-enforcement injunction to neutralise the effect of a foreign anti-suit injunction as seen in InterDigital Tech and People Interactive, since the objective in such cases is limited to protecting the court’s own domestic jurisdiction. Nonetheless, it remains important for the Indian standpoint to recognise the potential global impact of anti-enforcement injunctions, in order to arrive at a more balanced and calibrated decision. Such recognition must translate into an approach of circumspection and restraint to ensure that such injunctions are invoked only where intervention is truly indispensable.

3 Dire Ramifications of Procedural Delay

To appreciate the magnitude of the procedural delays inherent in applications for anti-enforcement injunctions, it is imperative to examine the multiple procedural stages at which cross-border injunctive relief may be sought. An applicant may approach the court either prior to the commencement of foreign proceedings, soon after their initiation, upon completion of pleadings, at any point before the trial begins, during the course of the trial, or after the final judgement has been delivered. (para 133) In the case of anti-enforcement injunctions, however, the applicant seeks relief only after the foreign proceedings have concluded and resulted in a final judgment, which represents the last stage at which a litigant aggrieved by those proceedings can seek injunctive intervention. This means that the foreign court has already expended substantial judicial resources in terms of time, effort, and cost. Restraining the enforcement of such a judgment at this belated stage would not only render those judicial resources futile but also undermine the efficacy of the judicial process. This apprehension was expressly recognised by the English Court of Appeal in its seminal decision in Ecobank Transnational Inc v. Tanoh(“Ecobank Transnational”).

The issue in Ecobank Transnational was whether the English High Court was wrong in refusing to grant an anti-enforcement injunction to restrain Mr. Tanoh from enforcing two judgments he had obtained in Togo and Côte d’Ivoire. In answering this question in the negative, the Court of Appeal advocated that there is an intrinsic relationship between comity and delay, in that the more advanced the foreign proceedings are, the greater the impact on foreign judicial resources and time, since granting such an injunction would render those efforts futile. Importantly, it cautioned that “an applicant should act promptly and claim injunctive relief at an early stage; and should not adopt an attitude of waiting to see what the foreign court decides.” (para 129)

Similarly, in another crucial foreign decision, namely, Sun Travels & Tours Pvt Ltd v. Hilton International Manage (Maldives) Pvt Ltd, by the Singapore Court of Appeal, where the prayer for an anti-enforcement injunction was also rejected, the Court endorsed the observations in Ecobank and added an important dimension regarding the grave impact of inherent delay. It emphasised that the longer the delay, the more extensively the foreign court would have engaged in the conduct and management of the proceedings, which would thereby make any intervention by the domestic court more intrusive upon foreign judicial authority. (para 82)

Further, it is also imperative to recognize that a lenient approach towards condoning delay could give a respondent “two bites at the cherry,” as flagged in Ecobank Transnational. This means that it would allow a party to participate actively in foreign proceedings for years, only to seek injunctive relief at the last moment if the final outcome proves unfavourable. This risks parties sitting on their rights for extended periods and seeking relief only after the final judgment has been rendered, which would be prejudicial both to the foreign court and to the opposing party. Such an approach would not only undermine procedural discipline but also could transform anti-enforcement injunctions into tools of strategic delay and forum manipulation, amounting to a stark abuse of process.

 The inherent delays and their serious ramifications therefore amplify the need for heightened judicial circumspection when considering the grant of anti-enforcement injunctions.

4 Alternative to Anti-Enforcement Injunctions

Another important reason why anti-enforcement injunctions should be granted with extreme caution is that parties aggrieved by a foreign judgment or order can achieve an identical and efficacious result through the domestic procedural remedy prescribed under Section 13 read with Section 44A of the CPC, which  enables such a party to resist the enforcement of a foreign judgment on well-defined substantive grounds as explained above.

This ability to resist the enforcement of foreign judgements under the CPC offers an efficacious and self-contained statutory remedy. The six statutory grounds not only provide clear guidance to judges but are also sufficiently wide in their import to restrain the enforcement of foreign judgements that violate the rights of litigants. For instance, ground (f) permits refusal of enforcement where the foreign judgment sustains a claim founded on a breach of any law in force in India. This statutory alternative is far less intrusive to the principle of comity, as it restrains only domestic enforcement of foreign judgements and lacks the potential worldwide ramifications inherent in an anti-enforcement injunction.

Moreover, by virtue of Alcon Electronics, even foreign interlocutory orders rendered on the merits fall within the ambit of Section 13 and can, therefore, be resisted at the enforcement stage. This indicates that, where such orders are rendered on merits, the statutory framework offers an alternative mechanism to oppose the enforcement of oppressive interim anti-suit or anti-enforcement orders issued by foreign courts. While not eliminating the relevance of anti-enforcement injunctions, it is argued that this alternative domestic remedy mitigates their necessity and calls for a more circumspect approach to their grant.

Conclusion and Recommendations

The foregoing analysis underscores the grave and far-reaching implications associated with anti-enforcement injunctions.  This piece has therefore contended that Indian courts must move away from a permissive approach and toward a narrow and circumscribed use of this remedy rooted in due regard for the wider implications inherent in its grant.

Moreover, it is also crucial to recognize that, in the realm of injunctive relief, no rigid or exhaustive test can be cast in stone, given the inherently discretionary and equitable character of injunctions and the unique factual matrix of each case. Nonetheless, owing to the extraordinary nature of anti-enforcement injunctions, this piece proposes that the following set of principles can anchor a more calibrated determination in such cases:

a. The extent of procedural or inordinate delay in approaching the court, and whether such delay is justifiable;

b. The degree of potential interference with, or impact upon, the enforcement mechanisms of foreign judicial systems;

c. The vexatious or oppressive character of the foreign proceedings vis-à-vis the applicant; and

d. The comparative magnitude of harm to the applicant as against the degree of intrusion into the authority of the foreign legal system.

This framework would enable a genuinely holistic balancing of equities and guard against the use of anti-enforcement applications as strategic devices to frustrate foreign judgments. In sum, anti-enforcement injunctions must remain rare remedies, granted only where the interests of justice clearly and compellingly require intervention.

Mayank Satija is a final year LL.B. student at Amity Law School Noida, with a keen interest in business and commercial laws.

Vineet Kalra is also a final year LL.B. student at Amity Law School Noida. His interests include criminal law and arbitration law.