Update: anti-suit and anti-arbitration injunctions in Hong Kong

Hong Kong's Court of First Instance retains an active, well-tested jurisdiction to restrain foreign proceedings – whether in the courts of another state or before a tribunal – that breach a valid arbitration agreement or prior arbitral award. Two distinct remedies govern this space: the anti-suit injunction (an order restraining a party from commencing or continuing foreign court proceedings in breach of an agreement to arbitrate) and the anti-arbitration injunction (an order restraining a party from pursuing a foreign arbitration that the respondent contends falls outside the scope of the arbitration clause or is otherwise abusive). Both sit within the Hong Kong courts' inherent equitable jurisdiction and, for arbitration-related applications, are reinforced by the Arbitration Ordinance (Cap. 609).

Anti-suit and anti-arbitration injunctions are interim or final court orders that preserve the integrity of an agreed dispute-resolution mechanism. In Hong Kong, applications engage the Court of First Instance, which exercises jurisdiction on equitable principles and, where the HKIAC Administered Arbitration Rules or another institutional ruleset governs the underlying dispute, in coordination with any seated tribunal. The governing procedural instrument is the Arbitration Ordinance (Cap. 609), modelled on the UNCITRAL Model Law.

This briefing sets out what practitioners and in-house counsel need to understand right now: the recurring triggers for injunction applications across the Hong Kong – Mainland China – offshore corridor, who is exposed, and what immediate steps reduce litigation risk.

What is driving anti-suit and anti-arbitration applications in this market?

The practical trigger is almost always the same. A counterparty – frequently one that sees strategic advantage in a different forum – files proceedings in a Mainland people's court, a Southeast Asian national court, or occasionally a parallel arbitral seat, despite a clause clearly naming Hong Kong or HKIAC as the agreed forum. The initiating party may argue that the clause is invalid, narrower than its drafting suggests, or simply that the foreign court should determine its own jurisdiction first.

That argument has a cost. Once foreign proceedings are under way, the clock runs against the party seeking protection. In our cross-border practice, we see applications stall because the claimant delayed – waiting to see whether the foreign court would decline jurisdiction rather than moving promptly in Hong Kong. That delay is frequently determinative. The Hong Kong courts expect an applicant to act with urgency and have shown readiness to refuse relief where the delay is unexplained.

A second, growing pattern involves disputes touching on the Greater Bay Area and cross-border infrastructure investments, where parties sometimes hold parallel agreements with inconsistent forum clauses. One agreement names HKIAC arbitration; a related agreement names a Mainland court. The anti-suit or anti-arbitration question then becomes one of which instrument governs the specific claim – a construction exercise for the Hong Kong court, not simply a mechanical one.

For HKIAC-seated arbitrations, it is worth noting that the 2024 HKIAC Administered Arbitration Rules, effective 1 June 2024, reinforce the tribunal's own competence-competence power: a tribunal constituted under those rules may determine its own jurisdiction, run in parallel with court proceedings in appropriate cases, and, where interim measures are needed on the Mainland, invoke the mechanism in force since 1 October 2019 allowing Hong Kong-seated arbitral parties to seek Mainland courts' interim measures.

Who is affected across the Hong Kong – Mainland – offshore corridor?

Exposure is not limited to active litigants. Any party to a cross-border contract with an arbitration clause that might be disputed, a BVI or Cayman holding entity whose counterparty is Mainland-based, or an enforcement creditor holding an award against a debtor with assets in multiple jurisdictions should treat this as a live concern.

Consider a mid-market acquisition completed with a Cayman holding entity acquiring a Mainland target through a Hong Kong intermediate. The sale and purchase agreement nominates HKIAC arbitration. Post-completion, the seller commences proceedings in a Mainland people's court for alleged misrepresentation, arguing the arbitration clause does not cover non-contractual claims. That is a classic anti-suit scenario – and the window to act in the Court of First Instance is measured in days, not months.

Enforcement creditors face a related exposure. A party holding a final award or judgment, and now seeking to register it under the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645), in force since 29 January 2024, may find the debtor has commenced fresh proceedings in another jurisdiction designed to frustrate or delay that registration. An anti-suit application in Hong Kong may be the fastest protective step available.

We regularly advise groups – including family-office principals structuring succession vehicles through BVI or Cayman holding entities and Mainland operating companies – that their contracts may contain silent or underspecified arbitration clauses. The risk materialises not at signing but at the moment of dispute, when a counterparty exploits the ambiguity.

What to do now

Three immediate priorities apply to any cross-border group with Hong Kong, Mainland or offshore contractual exposure.

• Audit your arbitration clauses. Confirm the governing institutional rules, the seat, and whether the clause covers non-contractual claims. An HKIAC arbitration clause drafted before the 2024 Rules came into force should be reviewed for alignment. For guidance on drafting a clause for a Cayman counterparty, see our note at Drafting an HKIAC arbitration clause for a Cayman Islands counterparty.
• Act without delay if foreign proceedings are filed. An anti-suit application is not a matter that can wait for a board meeting. The courts' assessment of urgency begins from the moment the applicant has notice of the foreign filing. Counsel should be briefed immediately and, if circumstances warrant, an emergency application prepared within hours.
• Map the enforcement endgame. An injunction preserves the agreed forum; it does not itself produce an award or a judgment. Once the substantive dispute is resolved, the enforcement route must be planned – particularly for assets that straddle Hong Kong, the Mainland and an offshore centre. For the full disputes and enforcement approach, see our disputes and arbitration practice overview and our note on construction and infrastructure disputes at Arbitrating a construction or infrastructure dispute in Asia.

If an injunction application – or the defence of one – is already in prospect, the sequence of steps determines the outcome as much as the underlying merits. Our desk handles both the injunction phase and the downstream enforcement coordination across the corridor.

To discuss how these remedies apply to your cross-border position, contact info@lockhartyip.com.

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Related

• Disputes Arbitration
• Drafting Hkiac Arbitration Clause Cayman Islands Counterparty Cayman 2
• Arbitrating Construction Or Infrastructure Dispute Asia

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