An arbitration clause is only as effective as the mechanisms available to enforce it. When a counterparty files litigation in a domestic court — despite having agreed to arbitrate — the other party faces a choice that can define the rest of the dispute: respond in the court proceeding (potentially conferring legitimacy on a forum it never agreed to), seek a stay, or pursue an anti-suit injunction to compel the court-filing party to stop. In U.S.-Latin American disputes, where forum shopping across multiple jurisdictions is a recurring tactic, understanding how anti-suit injunctions work and when to seek one is essential arbitration practice.
The Problem: A Party Files in Court Despite an Arbitration Clause
When parties have agreed to arbitrate their disputes and one party files litigation in a national court instead — either because it perceives a tactical advantage in that forum, because it wants to delay the arbitration, or because it believes the arbitration clause is invalid — the other party faces a choice: respond in court (potentially acquiescing to that forum), seek a stay of the court proceeding, or seek an anti-suit injunction that orders the court-filing party to stop the litigation.
Anti-suit injunctions in the international arbitration context take two forms: (1) injunctions issued by a court in the seat of arbitration or the enforcing jurisdiction, ordering a party to cease a foreign court proceeding; and (2) anti-suit orders issued by the arbitral tribunal itself as part of its interim measures authority, ordering a party to withdraw or not pursue proceedings in other forums. The former are judicial; the latter are arbitral. Both have a role to play depending on the facts, the urgency, and the enforcement landscape.
Court-Issued Anti-Suit Injunctions in Support of Arbitration
U.S. federal courts have authority to issue anti-suit injunctions in support of arbitration agreements under the Federal Arbitration Act and their inherent equitable powers. A U.S. party who faces foreign litigation in breach of an arbitration clause can petition a U.S. court to enjoin the other party from prosecuting the foreign proceeding.
The standard for a U.S. court anti-suit injunction in support of arbitration is demanding. The court must find that (1) the parties are the same in both proceedings, (2) the issues are the same, (3) the issuance of the injunction would not unduly interfere with foreign judicial sovereignty, and (4) the balance of hardships and equities favor the injunction. Courts in circuits with strong international commerce dockets — the Second, Fifth, and Eleventh Circuits — have each developed their own framework. The Eleventh Circuit, which covers Florida, applies a traditional equitable standard that gives weight to the parties' contractual agreement to arbitrate.
Timing matters enormously. Anti-suit injunctions are most readily granted early in the foreign proceeding, before the foreign court has invested substantially in the matter. A party that waits months before seeking relief may find that courts are reluctant to issue injunctions that effectively nullify substantial foreign judicial proceedings already underway. The application should be filed promptly — ideally within weeks of learning about the foreign proceeding — and supported by a complete record establishing the arbitration agreement, the scope of the clause relative to the claims filed in court, and the nature of the harm that parallel litigation causes.
Tribunal-Issued Anti-Suit Orders as Interim Measures
Most major institutional rules — ICC (Article 28), ICDR (Article 24), JAMS (Rule 24) — give arbitral tribunals authority to issue interim measures, including orders directed at the parties' conduct. A tribunal can, as an interim measure, order a party to refrain from pursuing proceedings in other forums that breach the arbitration agreement.
The tribunal's authority to issue such orders is broad under most institutional rules, but the enforceability of those orders against a defiant party is limited — the tribunal cannot hold a party in contempt. Enforcement of a tribunal anti-suit order typically requires petitioning a court to enforce the interim measure, using the same legal framework applicable to emergency arbitrator orders under the relevant institutional rules and the FAA.
Tribunal anti-suit orders are useful primarily as a record-building mechanism and as a source of leverage. A party that obtains a tribunal order prohibiting foreign litigation, and whose counterpart defies that order, has created a strong basis for cost-shifting at the award stage and potentially for challenging any resulting foreign judgment as incompatible with the arbitration agreement. The defiance of a tribunal order is itself a sanctionable event in most institutional frameworks, and documenting that defiance throughout the proceeding strengthens the prevailing party's cost claim.
Anti-Suit Injunctions in the LATAM Context
For disputes involving Latin American parties, the anti-suit injunction question arises most frequently in three situations: (1) a LATAM party files in a domestic court in its home jurisdiction claiming the arbitration clause is invalid under local law; (2) a LATAM party obtains a local court injunction — an "anti-arbitration injunction" — purporting to stop the arbitration itself; or (3) the LATAM party pursues parallel proceedings in a local court while the arbitration is pending, hoping to obtain a local judgment that might complicate enforcement of the eventual arbitral award.
Several Latin American jurisdictions have historically been skeptical of international arbitration clauses or have allowed domestic courts to interfere with arbitral proceedings. Ecuador, Bolivia, Venezuela, and — in certain historical periods — Argentina and Mexico have all had episodes where domestic courts issued injunctions against international arbitrations or questioned the enforceability of arbitration clauses. The legal landscape has generally improved, and most LATAM jurisdictions have adopted the UNCITRAL Model Law or equivalent pro-arbitration statutes. But practitioners must evaluate the specific jurisdictional risk in each matter rather than relying on a general assumption that local courts will respect arbitration agreements.
When a LATAM court issues an anti-arbitration injunction against an ICC or ICDR proceeding, the practical response is to continue the arbitration (treating the injunction as a breach of the arbitration agreement rather than a valid judicial order), seek enforcement of the arbitration agreement in the seat jurisdiction, and ensure that the eventual award is enforced in a jurisdiction where the counterparty has attachable assets — not in the jurisdiction that issued the anti-arbitration order. The New York Convention provides the enforcement mechanism; the strategy is to use it in the most favorable jurisdiction available.
Practical Guidance for Counsel
Before filing an anti-suit injunction application, confirm: Is the arbitration agreement clearly valid and enforceable? Is the foreign proceeding clearly within the scope of the clause? Is there a realistic enforcement mechanism for the injunction if granted — specifically, does the respondent have assets or business activity in the jurisdiction where you are filing? Who has assets where, and which forum can actually reach them to create real consequences for non-compliance?
Anti-suit applications in U.S. court should be prepared with a detailed record supporting the applicable four-factor analysis: affidavits or declarations describing the foreign proceeding and its current status, expert declarations on the foreign law governing the court proceeding, a copy of the arbitration agreement and analysis of its scope, and a proposed order specifically tailored to prohibit the identified conduct without sweeping too broadly into areas the court may be reluctant to address.
Coordinate with local counsel in the jurisdiction where the foreign proceeding is pending. In some cases, a stay application in the foreign court — based on the arbitration agreement — is faster, less expensive, and less contentious than a U.S. court anti-suit injunction. The two strategies are not mutually exclusive, and in high-stakes proceedings involving LATAM counterparties with assets in multiple jurisdictions, pursuing both simultaneously while the arbitration continues is often the right approach. The goal is to create coordinated pressure from multiple directions — in the seat jurisdiction, in the enforcement jurisdiction, and in the tribunal itself — that makes parallel litigation untenable for the party pursuing it.