Where anti-suit and anti-arbitration injunctions in Hong Kong stands now

A contract is signed, a dispute erupts, and two proceedings open simultaneously – one before an arbitral tribunal, one before a court somewhere else. The question that lands on a general counsel's desk is not academic: which proceeding runs, which stops, and who decides? For cross-border matters with a Hong Kong nexus, the answer turns on a body of equitable jurisdiction that is both well-established and, at its edges, genuinely contested.

Anti-suit and anti-arbitration injunctions in Hong Kong are orders from the Court of First Instance, or orders directed to a party appearing before it, that restrain a party from commencing or continuing proceedings in a foreign court or before an arbitral tribunal. The jurisdictional basis is the court's inherent equitable jurisdiction, applied through a well-tested line of authority on what constitutes "unconscionable" or "vexatious and oppressive" conduct. The governing statute for arbitration-related applications is the Arbitration Ordinance (Cap. 609), modelled on the UNCITRAL Model Law, which has shaped but not displaced the court's broader equitable power. Since the mutual-enforcement regime between Hong Kong and the Mainland took effect on 29 January 2024, the practical stakes of getting the forum question right have risen sharply: a judgment or award that lands in the wrong place may face an enforcement gap, not a recognition pathway.

This analysis sets out the commercial context, the governing mechanisms, the comparative read across the common-law and Mainland-court systems, and our current assessment of where the risk concentrates for cross-border groups with Greater China exposure.

Why the forum question is a commercial question first

Forum control is asset strategy. A party that secures proceedings in its preferred jurisdiction gains more than a procedural advantage – it shapes the governing law, the disclosure rules, the interim-measures toolkit, and, most critically, the enforcement route to the assets it actually wants to reach.

For a trading group with operating entities in the Mainland, a holding structure in the British Virgin Islands, and a financing arrangement documented under Hong Kong law, the choice between arbitration and litigation is already complex. Add a counterparty in a Central Asian or European jurisdiction, and a forum dispute rapidly becomes the primary battleground. Winning on the merits counts for nothing if the award or judgment cannot reach the assets.

Our cross-border practice sees this dynamic repeatedly. A party that acts first – commencing proceedings in a court of perceived tactical advantage before the other side can invoke the arbitration clause – forces its counterpart to choose between a reactive anti-suit application and a race to constitute the tribunal. Both paths carry time and cost. The value of understanding the Hong Kong position in advance is not theoretical.

The stakes intensified after the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) came into force on 29 January 2024. Under the old regime, only judgments from proceedings under exclusive choice-of-court agreements could be registered. Cap. 645 replaced that requirement with a connection-based test, broadening the scope of recognisable Mainland judgments significantly. The enforcement endgame – where a judgment or award actually lands – is now a different calculation from what it was before that date.

How do anti-suit injunctions actually operate in Hong Kong?

The Court of First Instance will grant an anti-suit injunction to restrain a party from pursuing or commencing foreign proceedings where those proceedings are vexatious, oppressive, or unconscionable in the particular circumstances. The court asks two linked questions: first, whether Hong Kong is the natural forum for the dispute; second, whether the foreign proceedings cause a sufficient degree of injustice to the applicant to warrant equitable intervention.

The applicant must show more than mere inconvenience. The standard demands a clear case of unconscionability, which the court assesses by examining the parties' pre-existing agreements, the connection between the dispute and the Hong Kong forum, and the practical consequences of allowing the foreign proceedings to continue. Where a valid arbitration clause exists and points to a Hong Kong-seated arbitration, the court has been willing to act firmly. The arbitration agreement is treated as a bargained-for allocation of forum risk, and a party that tries to escape it by commencing parallel court proceedings abroad attracts the court's equitable intervention.

Speed matters as much as substance. An applicant who delays after becoming aware of the foreign proceedings risks being taken to have acquiesced. The court will consider whether the injunction application was brought promptly. For a GC managing a live dispute with simultaneous proceedings, the message is direct: the window for a clean anti-suit application is short, and hesitation is costly.

The court also considers the practical effect of the order. Injunctions operate in personam – that is, against the party before the court, not against the foreign court itself. They do not legally bind a foreign tribunal. A recalcitrant counterparty with no assets in Hong Kong may comply only reluctantly, which is why the asset-enforcement angle of any anti-suit strategy must be mapped from the outset.

What is the anti-arbitration injunction, and where does it sit differently?

An anti-arbitration injunction restrains a party from commencing or continuing an arbitration. It is, in one sense, the mirror image of the anti-suit injunction – but the legal treatment is markedly different, and the threshold is materially higher.

Hong Kong courts apply a strong policy in favour of arbitration. The Arbitration Ordinance gives effect to the UNCITRAL Model Law principle of Kompetenz-Kompetenz – that is, the tribunal's power to rule on its own jurisdiction. This means the court is ordinarily reluctant to intervene to stop an arbitration that is under way, preferring to leave jurisdictional challenges to the tribunal in the first instance. An anti-arbitration injunction will be granted only in exceptional circumstances, most commonly where the arbitration is brought in clear breach of an agreement between the parties that precludes it, or where it is so manifestly without basis as to constitute oppression.

The distinction matters strategically. Where a party faces a foreign-court claim that threatens a contractual arbitration, it should move promptly to the court for an anti-suit injunction. Where a party faces an arbitration that it says has no valid basis, it must overcome a materially higher bar and should expect the court to tell it to raise the jurisdictional objection before the tribunal first. Getting that sequencing wrong wastes time and signals strategic confusion to the decision-maker.

There is a third variant that our desk encounters in complex cross-border files: an injunction sought against arbitration proceedings in a seat outside Hong Kong. The court will apply the same equitable test, but the enforceability of the order against the foreign-seated proceedings depends entirely on whether the restrained party has assets or participation interests in Hong Kong. Without that hook, the order is declaratory in practical effect.

The cross-border interface: Hong Kong courts and Mainland proceedings

The most pressing cross-border question for Greater China-facing groups is whether a Hong Kong anti-suit injunction can or should be used to restrain parallel proceedings in a Mainland people's court.

The answer requires precision. Hong Kong and the Mainland are separate legal systems under the one country, two systems framework. The cross-border judicial assistance arrangements between them do not create a merged forum structure. Hong Kong courts can, in principle, grant injunctions against parties before them to restrain conduct that includes commencing Mainland proceedings. But several factors make this a high-risk strategy in most cases.

First, the Mainland courts will not treat a Hong Kong injunction as binding on them. The injunction operates in personam against the party; it does not stop the Mainland court from proceeding. If the respondent to the injunction ignores the Hong Kong order and continues the Mainland proceedings, enforcement of the contempt is only possible against assets and interests within Hong Kong's jurisdiction. Second, commencing anti-suit proceedings against a Mainland counterparty who has chosen a Mainland forum risks provoking a defensive escalation, not a de-escalation. Third, since Cap. 645 came into force, a Mainland judgment made on or after 29 January 2024 is now potentially registrable in Hong Kong under a connection-based test, which changes the risk calculus: allowing a Mainland proceeding to run to judgment may no longer be as strategically damaging as it once was, if the Mainland court has proper jurisdiction and both parties are engaged.

The better approach in most Mainland-connected disputes is to use the forum-selection and interim-measures toolkit proactively. The Arrangement for Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings, which came into effect on 1 October 2019, allows parties to Hong Kong-seated arbitrations to apply to Mainland courts for property preservation, evidence preservation, and conduct preservation orders. This mechanism – which is unique to Hong Kong among offshore arbitration seats – provides a more targeted instrument than a blunt anti-suit injunction and is less likely to antagonise a Mainland counterparty in ways that make a negotiated resolution harder.

Where the comparative analysis sits: Hong Kong versus Singapore

Any practitioner advising on anti-suit injunctions in the Asia-Pacific context will be asked about Singapore. The comparison is instructive but narrower than often assumed.

Both seats apply a common-law equitable jurisdiction. Both treat an arbitration clause as a strong indicator that anti-suit relief should follow when a party breaches it by commencing court proceedings. Both apply an in personam model. The policy towards arbitration is comparably strong in both systems.

The differences emerge at the margins. Singapore courts have developed a line of authority on whether to grant anti-suit injunctions after arbitral proceedings are already constituted. Hong Kong jurisprudence emphasises the Kompetenz-Kompetenz principle more expressly in the anti-arbitration context, with a pronounced reluctance to intervene while the tribunal is seized. Where a counterparty has significant assets in Hong Kong and the agreement is Hong Kong-governed, Hong Kong is ordinarily the right seat for the anti-suit application. Where the main assets and operating entities are in Southeast Asia, Singapore's direct enforcement posture may be more efficient.

For the cross-border groups we advise, the practical question is rarely either/or. Groups with parallel Hong Kong and Singapore holding structures – a pattern common in private equity and family office arrangements across the Greater Bay Area – should map the enforcement routes from both seats before the dispute crystallises. Waiting until proceedings have commenced in an adverse forum narrows the options considerably.

What foreign counsel and in-house teams consistently get wrong

Three errors appear in our cross-border caseload with enough regularity to warrant direct treatment.

The first is treating the arbitration clause as self-executing forum protection. It is not. An arbitration clause establishes a contractual right to arbitrate. It does not automatically stop a counterparty from ignoring it and commencing court proceedings. The party with the benefit of the clause must actively invoke it – including, where necessary, applying promptly for anti-suit relief. A general counsel who waits for the dispute to "sort itself out" while a foreign court proceeding advances has likely forfeited the cleanest position.

The second error is conflating the anti-suit injunction with the anti-enforcement injunction. An anti-enforcement injunction – an order to restrain a party from enforcing a judgment or award in a particular jurisdiction – is a different animal with a different threshold and is governed in part by the registration and enforcement mechanisms of Cap. 645 and the mutual arbitral-award arrangements. The two instruments should not be used interchangeably in dispute strategy.

The third error is failing to map the asset position before choosing the forum for the application. An anti-suit injunction without an asset hook is an expensive declaration. Before applying, counsel should identify where the respondent's assets and participation interests sit, and structure the application – including any supporting interim measures – around that map. In our cross-border practice, the asset-tracing step is not a follow-on exercise; it is part of the initial strategy.

A cross-border scenario: the competing-proceedings problem

A manufacturing group incorporated in a CIS jurisdiction held its Greater China operations through a Hong Kong intermediate entity and a wholly foreign-owned enterprise structure on the Mainland. A supply agreement with a counterparty in Southeast Asia contained an HKIAC arbitration clause. A commercial breakdown produced two simultaneous proceedings: an HKIAC arbitration commenced by the CIS group, and court proceedings commenced by the Southeast Asian counterparty in its home jurisdiction, purportedly on a different cause of action but arising from the same factual matrix.

The CIS group came to us after the foreign court had issued a preliminary order. We mapped the situation in three dimensions: the validity and scope of the arbitration clause (which, on its terms, clearly captured the factual dispute), the asset footprint of the Southeast Asian counterparty (which included Hong Kong-registered interests), and the timing risk from the foreign-court calendar. We advised that the conditions for an anti-suit application before the Court of First Instance were present, and that the application should be made before the foreign court's next substantive hearing. The application was made on that timeline. The foreign proceedings were restrained; the HKIAC arbitration ran to completion in the following cycle.

The lessons from that matter generalise. Clause scope, asset footprint, and timing are the three variables that determine whether an anti-suit strategy is viable. All three must be assessed before the application is issued.

Our view on where the risk concentrates now

The post-Cap. 645 environment has shifted the risk map in a way that is not yet fully absorbed into the market's standard advice.

Before January 2024, a party facing a Mainland court proceeding could often afford to contest jurisdiction while the Hong Kong enforcement position remained the primary asset-recovery route. Cap. 645 changes that: if a Mainland court obtains jurisdiction on a connection-based test and issues a judgment on or after 29 January 2024, that judgment may be registrable in Hong Kong. The traditional comfort that a Mainland judgment was unenforceable in Hong Kong is gone for the new generation of cases.

This means that groups with cross-border exposure should be conducting forum-risk assessments before disputes crystallise, not after. The relevant questions are: which courts and tribunals could each party invoke? What connection-based arguments could a Mainland court deploy? Is the arbitration clause sufficiently broad and robustly drafted to capture the likely disputes? Is it correctly interpreted under the governing law? Has the clause been properly incorporated into all relevant sub-agreements and guarantees?

The second concentration of risk is timing. The window for anti-suit relief narrows from the moment the other side files. Courts assess whether the application was brought promptly. A party that receives notice of foreign proceedings and consults only weeks later may be told that the equitable basis for relief has been eroded by its own delay.

The third risk concentration is at the drafting stage. Anti-suit and anti-arbitration injunctions are, in large part, a remedy for defective or ambiguous dispute-resolution clauses. A clause that clearly captures the parties' intended forum, that names the seat with precision, and that is properly incorporated into all relevant transaction documents reduces the probability of a competing-forum dispute arising in the first place. We address the drafting foundations in our guide to drafting HKIAC arbitration clauses for cross-border counterparties.

Post-award, the enforcement endgame remains the decisive test. An injunction that restrains competing proceedings is only as good as the award or judgment it protects, and that award must ultimately be capable of reaching the assets. For a practical read on the post-award asset-tracing dimension, our briefing on post-award asset tracing in cross-border enforcement matters sets out the operational steps.

The sequence above describes the standard analytical position. Your matter turns on the specific documents, the jurisdictions actually engaged, and the order of steps – which is where the forum strategy is won or lost.

For a structured assessment of your forum position and the anti-suit or anti-arbitration options across the relevant jurisdictions, write to us at info@lockhartyip.com.

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

The following analytical sequence is not a checklist. It is a decision structure that counsel on our desk applies before recommending any forum-intervention strategy.

Situation A: A valid arbitration clause (HKIAC seat) exists; the counterparty has commenced court proceedings in a foreign jurisdiction; the counterparty has assets or corporate participation in Hong Kong. The instrument is an anti-suit injunction before the Court of First Instance, supported by an application for interim measures under the Arbitration Ordinance if the arbitration is already constituted. The route runs from the injunction application to the tribunal, with parallel asset preservation if the foreign proceedings have progressed. Timing is critical: the application should be made before the foreign court takes the next substantive step. The primary risk is delay on the applicant's side eroding the equitable basis for relief.

Situation B: An arbitration has been commenced against your client; your client's position is that the arbitration agreement is invalid or does not capture the dispute. The instrument is a jurisdictional objection before the tribunal under the Kompetenz-Kompetenz principle, with a simultaneous application under the Arbitration Ordinance for the court to determine the preliminary question if the jurisdictional defect is clear and confined. An anti-arbitration injunction is a last resort and will not be granted absent exceptional circumstances. Timing: the jurisdictional objection must be raised at the first opportunity; waiving it by engaging on the merits is a well-established trap. The primary risk is procedural waiver.

Situation C: Both parties are before Hong Kong-connected forums; the Mainland-court risk has crystallised after 29 January 2024. The instrument is the interim-measures Arrangement (effective 1 October 2019) if the arbitration is Hong Kong-seated – applying to the relevant Mainland court for preservation of property, evidence, or conduct. The anti-suit route to restrain a Mainland court proceeding is available in principle but carries high enforcement risk absent Hong Kong-situated assets of the counterparty. Timing: interim-measures applications must precede the Mainland court's substantive steps. The primary risk is the Mainland court proceeding to judgment, which is now registrable in Hong Kong under Cap. 645.

Situation D: Foreign forum selected by contract; one party now argues the clause is inoperative. Where the forum is a foreign court and one party asserts that the other has brought proceedings in breach of a different, valid arbitration agreement, the Hong Kong court may grant anti-suit relief if Hong Kong is the natural forum and the breach is clear. Where the foreign forum is itself an arbitration, the anti-arbitration threshold applies. In either case, the preliminary questions are: which agreement governs this dispute, and what is its proper law? Both questions should be resolved at the outset.

If an earlier filing, structure or enforcement attempt produced an adverse or stalled result, a second strategic read can identify the error and the routes still available. For a preliminary analysis of your cross-border forum position, contact info@lockhartyip.com.

A common objection: "the foreign court will not recognise a Hong Kong order anyway"

This objection is raised frequently by counterparties contesting anti-suit applications, and it has a kernel of truth. The foreign court is not bound by the Hong Kong order. But the objection misidentifies the mechanism.

An anti-suit injunction operates against the party, not the foreign court. If the party ignores the injunction and continues the foreign proceedings, it is in contempt of the Hong Kong court. Contempt sanctions – which can include the sequestration of Hong Kong assets – are available against a party with assets or business interests in Hong Kong's jurisdiction. For a group that relies on Hong Kong bank accounts, holds shares in Hong Kong-incorporated entities, or is party to Hong Kong-governed financing arrangements, the practical coercive pressure of a contempt order is material.

The objection also overlooks a more important point. Many counterparties do comply with anti-suit injunctions, precisely because non-compliance has consequences in the jurisdiction where their assets sit. The question is not whether the foreign court will recognise the order, but whether the restrained party has a sufficient Hong Kong-situated interest to make non-compliance a risk it is unwilling to bear. That is an asset-mapping question, not a jurisprudential one.

For groups with cross-border exposure across Greater China and the principal offshore holding centres, this practice area connects directly to our broader disputes and enforcement work. Our disputes and arbitration practice covers the full forum-selection and enforcement spectrum.

Related practices

• Disputes & Arbitration – cross-border forum selection, arbitration, and enforcement for international groups
• Holding Structures – structuring Hong Kong and offshore holding entities to support dispute and enforcement strategies

Speak with Lockhart & Yip

For a scoped view of your matter, contact info@lockhartyip.com. Discuss your matter →

Related

• Disputes Arbitration
• Drafting Hkiac Arbitration Clause Singapore Counterparty Singapore Matter
• Post Award Asset Tracing Uae Uae Briefing

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