Abstract

The concept of party autonomy is one which is at the core of arbitration; It presupposes that parties are at liberty to determine how their disputes should be resolved. To preserve the integrity of the arbitral process, the court must recognize and give effect to the mutual choice of the parties where it is shown to be voluntary. The equitable remedy of anti-suit injunction is a very vital tool for achieving this purpose, as it restrains parties who have voluntarily agreed to arbitrate, from proceeding to litigate in breach of their agreement. This article dissects the attitude of Nigerian courts to anti-suit injunctions, and finds that Nigerian Courts just like their counterparts in other common law jurisdictions, are willing to grant anti-suit injunctions in deserving cases and under certain circumstances.

Introduction

There has recently been an increasing preference for arbitration for resolving commercial disputes. This is not unexpected, in view of numerous advantages arbitration offers, such as party autonomy, expeditious resolution of disputes, freedom of parties to choose governing laws, flexibility, finality and universal enforceability of arbitral awards based on the New York Convention¹ which governs enforcement of awards in its 172 signatory states.²

Arbitration is an alternative dispute resolution mechanism whereby parties voluntarily submit their disputes to an arbitrator or arbitrators, who would hear their dispute, examine evidence presented by the parties and then make an award which is enforceable just like a court judgment.³

Arbitration is usually predicated on parties’ agreement, usually inserted in the underlying contract in the form of an arbitration clause, stipulating that any dispute arising out of the contract shall be finally resolved by arbitration.⁴

However, there may be situations where a party to an arbitration agreement may when a dispute has arisen, resort to litigation rather than submitting same to arbitration. Consequently, there is need for a mechanism that ensures parties adhere to their agreement and prevent either party from deviating from their agreement to arbitrate.

Conceptual Clarifications

Anti-Suit Injunctions

Anti-Suit Injunction⁵ is a court order forbidding a party to an arbitration agreement from filing an action in court in defiance of the agreement,⁶ or from continuing with a pending lawsuit which has already been filed.⁷

Anti-suit injunction is a kind of Jurisdiction in personam exercised by Courts in common Law jurisdictions to restrain a proceeding brought in breach of an arbitration agreement, and is predicated on the theory that if it is denied, the applicant would be deprived of their contractual right (Pacta sunct servanda).⁸

Application for ASI is usually made to either the court of the seat of arbitration or of the country whose law governs the arbitration.⁹ The origin of ASI dates back to 1615,¹⁰ when a court restrained the claimant from enforcing a judgment he fraudulently obtained, after he took his opponent’s main witness to a pub on the day the witness was supposed to testify, but lied to the judge that the witness was “deathly ill”.¹¹

Anti-suit injunction is the opposite of Anti-Arbitration Injunction (AAI)¹² and they differ in the following ways:

While an AAI seeks to frustrate the initiation or continuation of arbitration, an ASI on the other hand seeks to prevent the initiation or continuation of a lawsuit already initiated in breach of an arbitration agreement; whilst ASI is an in personam order against a party who has breached an arbitration agreement by commencing litigation, an AAI seeks to prevent both the claimant and the tribunal or either of them from commencing or continuing an arbitration.¹³ ASI is used to protect the arbitral proceedings, by ordering discontinuance of a suit likely to occasion imminent harm, prejudice the subject matter or frustrate the arbitration.

Party Autonomy

The concept of party autonomy lies at the core of arbitration, and is predicated on the understanding that parties to an arbitration should be allowed to determine how their disputes should be resolved.¹⁴

Redfern and Hunter’s definition of party autonomy is perhaps, the most authoritative, according to them “Party autonomy is the guiding principle in determining the procedure to be followed in an international commercial arbitration. It is a principle that has been endorsed not only in national laws, but by international arbitral institutions and organizations. The legislative history of the Model Law shows that the principle was adopted without opposition”.¹⁵

The principle of party autonomy is recognized in various national and international laws, and has formed the basis for determining enforceability of an arbitral award. In MV Lupex v. Nigeria Overseas Chartering & Shipping Limited,¹⁶ the Supreme Court recognized party autonomy in arbitration, by upholding the bindingness of an arbitration clause. Also, the Arbitration and Mediation Act¹⁷ reinforces the concept of party autonomy by providing that arbitration agreement is irrevocable except by agreement of both parties.¹⁸

Therefore, once parties have voluntarily chosen arbitration as their preferred fora for resolution of their disputes, they and even the court are bound to preserve the sanctity of the agreement.

1. New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. [↩]
2. New York Convention Blog, “Contracting States” https://www.newyorkconvention.org/contracting-states accessed August 7th 2024. [↩]
3. Lexis-Nexis, “Arbitration: Definition”(2024)< https://www.lexisnexis.co.uk/legal/glossary/arbitration> accessed August 7th 2024. [↩]
4. Ibid. [↩]
5. Hereinafter referred to as ASI or ASIs. [↩]
6. Pena Copper Mines Ltd v Rio Tinto Co. Ltd (1911) L.T.846 (CA). [↩]
7. Bryan A. Garner, “Black’s Law Dictionary” (10 th Edn. Thomson Reuters, 2014) p. 115. [↩]
8. Dicey & Morris, “The Conflict Of Laws” (13th Edn. Sweet and Maxwell, 2000) Vol 1, paras. 12-128. [↩]
9. See: XL Insurance Ltd v. Owens Corning [2000]2 Lloyd’s Rep 500 [↩]
10. Charles Russell Spechlys, “Anti-Suit Injunctions: How They Work”(Feb. 2024)<https://www.lexology.com/library/detail.aspx?g=938359d8-1b38-42af-aa3f-ff1c68ab30db> accessed August 7
    th 2024. [↩]
11. Gee, “Commercial Injunctions” (7th Edn. [↩]
12. Hereinafter referred to as AAI or AAIs. [↩]
13. Lew, Julian D M. “Does National Court Involvement Undermine the International Arbitration Processes?” American University International Law Review 24, no. 3 (2009): 489-537. [↩]
14. Templars, “Domestic Arbitrations In Nigeria: Can Foreign Counsel Still Run The Race?”<https://www.templars-law.com/app/uploads/2015/05/DOMESTIC-ARBITRATION-IN-NIGERIA-CAN- FOREIGN-COUNSEL-STILL-RUN-THE-RACE.pdf> accessed August 7 th 2024. [↩]
15. Redfern, Hunter and 2 Ors, “Law and Practice of International Commercial Arbitration”, (4
    th Edn., 2004), at p. 315. [↩]
16. (2003) 15 NWLR (Pt. 844) 569. [↩]
17. Arbitration and Mediation Act) (AMA), 2023. [↩]
18. Ibid., s 3.. [↩]