Hong Kong – Where The Applicant Had Delayed Making The Application until The End Of The Arbitration Limitation Period The Court Of Appeal Refused To Grant An Anti-Suit Injunction Against The Foreign Proceedings.

11 October, 2016

The case is a reminder that anti-suit injunctions must be sought promptly. In this case the injunction was refused even though there was a clear agreement between the parties to arbitrate. The court said that it will look at each case on its facts and here the relevant factors contributing to the court's decision included:

• How far advanced the foreign proceedings were – proceedings were already underway in mainland China and a couple of interim decisions had already been made in that matter. The CA was conscious of intruding into Chinese sovereignty.
• The contractual limitation period for bringing a claim in the agreed forum – the CA held that the delay and comity were related. In any event, the delay in making the application for an injunction meant that the limitation period had expired both in the litigation and in the arbitration and therefore, if the injunction was granted the defendant would be left without a remedy.
• Whether there was any tactical reason for the delay, for instance, to deprive the opposing party of a remedy – see above.

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