Reading the risk in anti-suit and anti-arbitration injunctions in Hong Kong

A counterparty files proceedings in a foreign court the day after an arbitration clause is invoked. The manoeuvre is deliberate. The jurisdiction chosen is inconvenient, the applicable law unfavourable, and the timing designed to force a settlement before the agreed forum can act. For groups with cross-border exposure to Greater China and the principal offshore centres, this is not a theoretical scenario. It lands on desks.

Anti-suit and anti-arbitration injunctions in Hong Kong are equitable remedies granted by the Court of First Instance to restrain a party from commencing or continuing proceedings in a forum that is inconsistent with an arbitration agreement or a choice-of-court clause. Since the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance came into force on 29 January 2024, the enforcement landscape has shifted: where a party wins an injunction, the downstream asset question – enforceability across the Mainland–Hong Kong boundary – is now materially different from where it stood under the prior regime.

This analysis covers what is commercially at stake, the governing instruments, the cross-border interface as it actually bites, a comparative read across the two systems, and our view on where the risk sits now.

What is actually at stake: the commercial question before the legal one

The purpose of an anti-suit or anti-arbitration injunction is not procedural housekeeping. It is about controlling where a dispute is resolved, and that choice determines what the winner can do with the outcome.

A group with operating companies in the Mainland, a holding entity in the BVI, and a counterparty headquartered in a third jurisdiction does not litigate abstractly. It litigates to reach assets. An award or judgment that cannot be enforced where the assets sit is a theoretical victory. This is the commercial reality that makes injunctive relief worth pursuing – and worth defending against.

The asset endgame dictates the strategy. If the counterparty's assets are primarily in Hong Kong and the Mainland, the winning party needs an outcome that registers in both places. If the counterparty can trigger parallel proceedings in a jurisdiction whose judgments are neither recognised in Hong Kong nor enforceable on the Mainland, the cost of fighting on two fronts may be designed to exceed the value of the claim. Anti-suit relief short-circuits that calculus.

In our cross-border practice, we see this dynamic most acutely in disputes arising from joint venture agreements, offshore holding structures, and long-form commercial contracts where the arbitration clause was drafted in one commercial environment and the dispute arises in another. The structural gap between where the clause points and where the assets are is where the injunction question lives.

The governing instruments: how the Hong Kong court acts

The Court of First Instance exercises its jurisdiction to grant anti-suit injunctions under the court's equitable and statutory jurisdiction, informed by the principle that a party who has agreed to resolve disputes in a particular forum should be held to that agreement. The Arbitration Ordinance (Cap. 609), modelled on the UNCITRAL Model Law, provides the overarching framework for arbitration-related relief in Hong Kong.

The relevant test for an anti-suit injunction requires the applicant to satisfy the court that: the respondent is amenable to the jurisdiction of the Hong Kong court; there is a relevant agreement (typically an arbitration clause or exclusive jurisdiction clause) pointing to Hong Kong or another forum the applicant seeks to protect; the foreign proceedings are vexatious or oppressive in the sense of being contrary to that agreement; and the balance of convenience favours the grant.

Anti-arbitration injunctions – orders restraining a party from pursuing arbitration – are rarer and require a higher threshold. The court will examine whether the arbitration agreement is alleged to be void, inoperative or incapable of being performed, or whether there is a compelling reason why the arbitral process should not proceed. The pro-arbitration policy of the Hong Kong courts, consistently expressed across decades of authority, means that applications to restrain arbitration face significant resistance.

The Arbitration Ordinance also gives the court jurisdiction to grant interim measures in support of arbitral proceedings, including injunctions under the regime that runs alongside the HKIAC Administered Arbitration Rules (2024 Rules, effective 1 June 2024). Where emergency relief is sought through an emergency arbitrator, proceedings are ordinarily completed within 14 days of file transmission. That is the arbitral track. The court track, by contrast, moves on the court's own timetable and is available even before an arbitral tribunal is constituted.

Practitioners should hold both tracks in mind simultaneously. A well-constructed application may run a court anti-suit injunction in parallel with an emergency arbitrator application for interim measures, using each to reinforce the other.

Contextual bridge: The instruments are clear in isolation. The complexity enters when the counterparty's proceedings are filed in a jurisdiction that does not recognise Hong Kong equitable relief – or where the party against whom the injunction is sought has no significant presence in Hong Kong. The cross-border interface is where the analysis becomes acute.

For a structured assessment of the injunctive relief options available across the relevant jurisdictions, write to us at info@lockhartyip.com.

How does the cross-border interface bite in practice?

The cross-border interface bites at three points: service and amenability, enforceability of the injunction itself, and the downstream enforcement of the award or judgment the injunction is designed to protect.

Amenability. The Hong Kong court can grant an anti-suit injunction against a party who is present in or amenable to Hong Kong jurisdiction. For a Mainland counterparty or a Mainland-incorporated entity with no Hong Kong presence, the in personam nature of the injunction is immediately in question. The court will look at whether the respondent has submitted to jurisdiction, whether it has assets in Hong Kong, and whether service out of the jurisdiction can be effected on a recognised ground. Where the counterparty operates through a BVI or Cayman holding entity with Hong Kong connections, the jurisdictional position is more tractable – but it requires evidence, not assumptions.

Enforceability across the boundary. A Hong Kong anti-suit injunction is an order of the Hong Kong court. It binds the respondent as a matter of personal obligation. If the respondent continues the foreign proceedings in breach of the injunction, the Hong Kong court can hold them in contempt. But the injunction itself is not directly enforceable on the Mainland as an injunction. The Mainland Judgments Ordinance (Cap. 645) covers monetary and certain non-monetary judgments in civil and commercial matters, and the exclusion list is relevant here – parties should verify which categories fall outside the reciprocal-enforcement mechanism before placing weight on it.

The downstream award. This is where the analysis converges. If the anti-suit injunction succeeds in preserving the arbitral process, and the tribunal produces an award, that award then travels under the 1999 Arrangement and the 2020 Supplemental Arrangement for mutual enforcement of arbitral awards between Hong Kong and the Mainland. Simultaneous enforcement applications in both jurisdictions have been permitted since the 2021 amendment to the Supplemental Arrangement. The asset endgame – enforcement where the assets actually sit – therefore depends on getting the injunction right upstream.

A micro-scenario illustrates the sequence. A European fund held a joint venture agreement with a Mainland operating partner. The agreement contained an HKIAC arbitration clause. The Mainland partner, anticipating an adverse award, commenced proceedings in a Mainland court seeking a declaration that the arbitration clause was invalid. The fund applied to the Hong Kong Court of First Instance for an anti-suit injunction. The critical pre-application steps were: assembling evidence of the respondent's Hong Kong-connected assets and the basis for service, filing the application on an urgent basis, and simultaneously notifying the HKIAC to constitute the tribunal at pace. The injunction was granted on an interim basis; the tribunal was constituted; the anti-arbitration argument was then addressed within the arbitration as a jurisdictional objection. The arbitral process ran its course. The award was then available for enforcement under the Mainland–HK Arrangement. The sequence – injunction, constitution, jurisdiction, award, enforcement – is the architecture. Losing any link loses the chain.

The comparative read: Hong Kong versus the position in the Mainland

Hong Kong and the Mainland represent two distinct legal traditions operating within a single constitutional architecture. The difference is material for injunctions.

Hong Kong is a common-law jurisdiction. The Court of First Instance has well-developed equity jurisdiction to grant injunctions in personam, including anti-suit relief. The court's approach to arbitration is consistently supportive, reflecting the policy embedded in the Arbitration Ordinance and the New York Convention, which applies in Hong Kong for foreign-seated awards. The courts will generally hold parties to their arbitration agreements and will scrutinise anti-arbitration applications with scepticism.

The Mainland operates under a civil-law code and a distinct court system. Lis pendens (parallel proceedings in two jurisdictions) is treated differently from how a common-law court would treat it. The Mainland courts do not have a direct equivalent of the common-law anti-suit injunction. Where Mainland proceedings are commenced in potential conflict with a Hong Kong arbitration clause, the response in the Mainland is typically to raise the arbitration agreement as a jurisdictional objection before the relevant people's court – a different procedural route that operates under different principles and timelines.

This asymmetry is significant. A party who obtains a Hong Kong anti-suit injunction restraining Mainland proceedings has a court order that the respondent must comply with as a matter of Hong Kong law. But the Mainland court seized of the matter is not bound by that order and will apply its own procedural rules to determine whether to stay or continue. The Hong Kong injunction operates by pressure on the respondent, not by direct authority over the foreign court. If the respondent is willing to accept the contempt risk in Hong Kong while pressing forward in the Mainland – because its assets are outside Hong Kong's reach – the injunction's practical leverage diminishes.

What does that asymmetry mean for strategy? It means that a well-advised applicant considers the respondent's asset map before filing. If the respondent holds assets in Hong Kong or through offshore vehicles amenable to Hong Kong jurisdiction, the injunction has genuine teeth. If the respondent's assets are exclusively on the Mainland with no Hong Kong presence, the applicant may need to assess whether the injunction achieves more than a temporary procedural advantage – and whether alternative strategies, including direct engagement with the Mainland jurisdictional objection, better serve the asset endgame.

Singapore presents a different comparison point. Singapore's courts also have well-developed anti-suit jurisdiction and a consistently pro-arbitration posture, and Singapore-seated arbitrations are common in the same deal corridors that generate Hong Kong disputes. Where a contract is structured with assets in the Mainland and offshore, the choice of seat – and therefore which court's anti-suit jurisdiction is invoked – is a structuring decision with downstream enforcement consequences, not merely a matter of preference.

What foreign counsel and in-house teams get wrong

Three errors recur. They are not obscure. They are structural.

First: treating the injunction as the end rather than the means. An anti-suit injunction is interim relief. It preserves the arbitral process. It does not produce an enforceable outcome. Practitioners who obtain the injunction and regard the matter as resolved have missed the point. The injunction buys time and forum protection; it does not produce the award. The downstream enforcement work – the Mainland–HK Arrangement, the registration mechanism, the asset tracing – begins the moment the injunction is granted, not after the award is issued.

Second: underestimating the jurisdictional threshold. In-house teams sometimes assume that because a contract is governed by Hong Kong law and provides for Hong Kong arbitration, the Hong Kong court will naturally have jurisdiction over any injunction application. That is not automatic. The court's in personam jurisdiction depends on the respondent's amenability. Where the respondent is a Mainland entity with no Hong Kong footprint, the applicant needs a proper jurisdictional basis – an asset, a transaction nexus, a contract with a Hong Kong connection – before the application is filed. Filing without that analysis risks an early jurisdictional defeat that strengthens the respondent's position in the parallel proceedings.

Third: filing too late. Anti-suit relief is most effective before the foreign court is deeply seized of the matter. Once the foreign court has heard substantive argument, granted interim relief of its own, or issued a preliminary ruling, the Hong Kong court's willingness to restrain continued prosecution of those proceedings diminishes – not in principle, but in practice, because the balance of convenience calculation shifts. The injunction application should be part of the first-response strategy, not an afterthought when the foreign proceedings have already progressed.

We regularly advise on situations where the first contact comes after one or more of these errors has already been made. Re-sequencing is possible but more costly. The second micro-scenario illustrates the recovery position.

A Middle Eastern family office held an offshore holding structure with operating assets in Hong Kong and the Mainland. A joint venture dispute arose; the counterparty – a Hong Kong-incorporated entity with Mainland-group backing – commenced court proceedings in a Mainland court without notice. The family office's existing counsel filed an anti-suit application in Hong Kong several weeks after the Mainland proceedings had produced a first-instance interlocutory order. By that point, the balance-of-convenience analysis was more complex. We advised on a parallel track: raising the HKIAC arbitration clause as a jurisdictional objection in the Mainland proceedings, while simultaneously pushing the Hong Kong court anti-suit application. The two tracks ran concurrently. The Mainland proceedings were stayed; the arbitration proceeded. But the delay cost one full procedural cycle that a prompt first response would have avoided.

If an earlier filing, structure or enforcement attempt produced an adverse or stalled result, a second read can identify the strategic error and the routes still open. Write to us at info@lockhartyip.com.

The argument-led read: where the risk sits now

The 29 January 2024 commencement of the Mainland Judgments Ordinance (Cap. 645) changed one part of the picture without changing another.

What changed: the reciprocal-enforcement mechanism for civil and commercial judgments is now broader. The old exclusive-jurisdiction requirement – which meant only judgments from courts with exclusive jurisdiction under a pre-existing agreement were eligible – is replaced by a connection-based test. This matters for anti-suit injunction strategy because it affects what happens to related monetary judgments (as opposed to arbitral awards) that emerge from the same dispute, and it affects the enforceability of Mainland judgments that a party may be trying to obtain by filing Mainland proceedings in the first place. A counterparty filing Mainland proceedings today does so knowing that a Mainland monetary judgment may be more readily enforceable in Hong Kong than under the prior regime. That changes the attractiveness of the Mainland-filing manoeuvre.

What did not change: the pro-arbitration posture of the Hong Kong courts remains the strongest constant in this area. The court's equitable jurisdiction to grant anti-suit relief in support of arbitration is robust and is exercised frequently. The HKIAC Rules (2024 edition) provide a strong procedural framework, including emergency-arbitrator machinery available on short notice. The Mainland–HK Arrangement for arbitral awards, as amended, provides a clear enforcement pathway that does not depend on the new Judgments Ordinance.

The risk, as we read it, now sits in three places.

The gap between the injunction and the asset. The Hong Kong court's in personam order does not reach assets outside Hong Kong without further steps. A counterparty who is willing to absorb contempt risk in Hong Kong – because it calculates that its assets are beyond practical reach – can continue Mainland proceedings. The injunction is not self-enforcing across the boundary. This gap is structural and is not closed by the 2024 Judgments Ordinance.

Parallel proceedings in third jurisdictions. Where the counterparty files not in the Mainland but in a third jurisdiction – say, a CIS court or a Middle Eastern court with no established recognition or enforcement relationship with Hong Kong – the anti-suit injunction analysis becomes more complex. The respondent may have no Hong Kong-amenable assets; the third-court judgment may not threaten any Hong Kong-registered enforcement position; and the calculus of whether the anti-suit application achieves more than a statement of principle requires careful assessment.

Anti-arbitration applications within Hong Kong. There is a narrow but real risk of anti-arbitration injunctions being sought within Hong Kong proceedings – typically where a party argues that the arbitration agreement is void, that the dispute falls outside its scope, or that the arbitral process has become unconscionable in the specific circumstances. The courts will hear these applications but will set a high bar. In our experience, the more common error is a respondent raising anti-arbitration arguments within the arbitration as jurisdictional objections, rather than pursuing a separate court application – which is generally the more efficient path for a respondent who has a genuine challenge to the agreement.

The overall read: Hong Kong remains the best-placed neutral forum for disputes with Greater China exposure, precisely because it sits at the convergence of common-law equitable jurisdiction, the Mainland–HK arbitral award Arrangement, and the New York Convention for other-seated awards. But the tools are only as effective as the strategy they serve. Anti-suit relief is one instrument in the sequence; it must be connected to the enforcement route before it is deployed.

Decision matrix: situation, instrument, route, timing, risk

The matrix below is expressed in prose because the decision points are sequential, not parallel. Readers should treat each as a conditional step.

Situation A: Counterparty files court proceedings in the Mainland in breach of an HKIAC arbitration clause; respondent has Hong Kong-connected assets or an offshore holding entity amenable to Hong Kong jurisdiction. Instrument: application to the Court of First Instance for anti-suit injunction, combined with emergency-arbitrator application under the HKIAC Rules if the arbitration has been invoked. Route: urgent without-notice application followed by inter partes hearing; simultaneous constitution of the tribunal. Timing: first response within days of learning of the Mainland filing; do not wait for service. Risk: the Mainland court may issue interlocutory orders before the Hong Kong injunction is served on the respondent; the window for effective relief narrows with each Mainland procedural step.

Situation B: Counterparty seeks to restrain Hong Kong arbitration by filing a court application in Hong Kong arguing that the arbitration agreement is void or inoperative. Instrument: resist the anti-arbitration application in the Hong Kong courts; simultaneously notify the HKIAC and press for constitution of the tribunal; raise the challenge as a jurisdictional objection within the arbitration under the Kompetenz-Kompetenz (tribunal's power to rule on its own jurisdiction) principle embedded in the Arbitration Ordinance. Route: court resistance plus parallel arbitral track. Timing: the arbitral track should not be held pending the court application; the tribunal can proceed to examine jurisdiction while the court application is live. Risk: delay in constituting the tribunal hands the opposing party a procedural advantage; constitution should be pressed immediately.

Situation C: Counterparty files in a third jurisdiction (CIS, Middle East) with no Hong Kong enforcement connection; respondent has no Hong Kong assets. Instrument: assessment of whether a Hong Kong anti-suit injunction achieves practical leverage; if not, the more effective route may be a jurisdictional challenge in the third court combined with a protective arbitration filing in Hong Kong to preserve the claim. Route: dual-track – resist in the third forum on the basis of the arbitration clause; file the arbitration to preserve the limitation position; assess the third-forum judgment's enforceability risk. Timing: limitation assessment is critical; the arbitration should be filed even if the anti-suit route is not pursued. Risk: allowing the third-forum proceedings to progress to judgment without a parallel enforcement strategy.

The self-assessment questions a GC should ask

Before committing to an injunction application, the relevant questions are practical and factual.

Where are the counterparty's assets? If the answer is exclusively on the Mainland with no Hong Kong or offshore footprint, the in personam analysis begins in a difficult place. The injunction may still be worth pursuing – both for the pressure it applies and for the record it creates – but the expectations should be calibrated accordingly.

What is the arbitration clause? Is it institutional (HKIAC, ICC, SIAC) or ad hoc? Does it specify Hong Kong as the seat? A clause that specifies Hong Kong as the seat under HKIAC Rules gives the court a clear jurisdictional anchor and the applicant a clean basis for relief. A clause that is ambiguous, that names a different seat, or that contains pathological drafting requires a prior assessment of whether the Hong Kong court is the right forum for the injunction application at all.

Has the counterparty already obtained interlocutory relief in the foreign court? If so, the balance of convenience calculation is more complex. The application is still available, but the strategy must address the status of the foreign interlocutory order and whether the Hong Kong court will require it to be addressed as part of the balance-of-convenience analysis.

What is the enforcement route for the eventual award? Anti-suit relief is protective, not substantive. The award that emerges from the protected arbitration must itself be enforceable. If the asset endgame requires enforcement on the Mainland, the 1999 Arrangement and the 2020 Supplemental Arrangement apply, and the registration procedure must be mapped before the arbitration concludes, not after.

Our desk is built around exactly this sequence: from injunction application through tribunal constitution to award and enforcement. We regularly act on cross-border matters of this kind across the jurisdictions that matter most to our clients.

For a preliminary read on your enforcement route and the injunctive relief options available, email info@lockhartyip.com.

Related practices

• Disputes & Arbitration – cross-border enforcement, arbitration and injunctive relief across Greater China and offshore centres
• Holding Structures – offshore and Hong Kong holding architecture across BVI, Cayman and Hong Kong

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This publication is general information and does not constitute legal advice. For advice on your situation, contact info@lockhartyip.com.