How to approach anti-suit and anti-arbitration injunctions in Hong Kong

A parallel proceeding opened in the wrong forum can destroy the value of an arbitration agreement overnight. For any group with assets or counterparties straddling the Mainland and offshore centres, the window to act is short – and the sequence of steps determines whether the Hong Kong courts will intervene at all.

Anti-suit and anti-arbitration injunctions are orders from the Hong Kong courts restraining a party from commencing or continuing proceedings in a foreign court or arbitral tribunal, or from pursuing a challenge to an arbitral tribunal's authority. The governing instrument is the Arbitration Ordinance (Cap. 609), which incorporates the UNCITRAL Model Law and gives the Court of First Instance broad powers to grant interim relief in support of arbitration. The decision to seek such an order must be made promptly: unexplained delay is, in our cross-border practice, among the most common reasons applications fail at the threshold.

This guide sets out the decision the reader faces, the options on the table, the sequence in order with the gate at each step, the most common mistakes, and a short checklist before the application is made.

What is the decision, and what are the options?

The core question is whether a party to an arbitration agreement should seek a court order to protect that agreement from a competing proceeding – and if so, where and how. The answer turns on four facts: where the arbitration is seated, where the competing proceeding has been filed, where the responding party's assets sit, and how quickly the applicant can move.

In our cross-border practice, the most common scenario involves a Hong Kong-seated or HKIAC-administered arbitration coupled with a parallel proceeding in a Mainland people's court or in a third jurisdiction – often the BVI, the Cayman Islands, Singapore, or a civil-law court in a CIS or Middle Eastern state. The underlying arbitration agreement may be embedded in a joint-venture contract, a shareholders' agreement, or a loan facility.

The applicant has, broadly, three options. First, seek an anti-suit injunction from the Hong Kong courts restraining the foreign court proceeding. Second, challenge the jurisdiction of the foreign court or tribunal directly in that forum. Third – and often overlooked – do both in parallel, because relying on a single route can leave the applicant exposed if one front moves faster than expected.

What drives the choice? The location of assets is the decisive factor in the medium term. An injunction that cannot be enforced against the respondent is an expensive piece of paper. Where the respondent has no assets in Hong Kong, the applicant must think through the enforcement endgame before filing the application – because the steps taken in the injunction phase directly affect the options available when it comes to converting a later award into money.

When does the Hong Kong court have jurisdiction to grant relief?

The Court of First Instance has jurisdiction to grant anti-suit relief where there is a sufficient connection to Hong Kong – typically because the arbitration is Hong Kong-seated, because the underlying agreement provides for Hong Kong law, or because the respondent is present or has assets in the jurisdiction. The Arbitration Ordinance expressly preserves the court's power to support arbitral proceedings, and the common-law inherent jurisdiction to restrain unconscionable foreign proceedings runs alongside it.

For anti-arbitration injunctions – orders restraining a party from pursuing an arbitration – the jurisdictional base is similar, but the court applies the relief more cautiously. The court is generally reluctant to restrain an arbitral tribunal that has not yet ruled on its own competence, and it will expect the applicant to have raised the jurisdictional objection before the tribunal first, or to explain why it could not do so.

Two points from our desk are worth stating clearly. First, the fact that Hong Kong implements United Nations sanctions and does not give domestic effect to unilateral measures of other states means that sanctions-related jurisdictional disputes require specific analysis of which regime actually applies to the counterparty and the transaction. Second, the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645), in force since 29 January 2024, changed the calculus for parties considering whether to let a Mainland proceeding run or to seek to restrain it: a Mainland judgment made on or after that date can now be registered in Hong Kong, which alters the risk profile of a contested parallel-proceeding situation considerably.

What is the sequence, step by step?

The steps below run in order. Each carries a gate: a condition that must be satisfied before the next step is viable.

Step 1 – Confirm the agreement and the seat

Before any application is made, the arbitration agreement must be reviewed in its final executed form. The gate at this step is validity and scope: does the agreement cover the dispute now being litigated in the foreign forum? A clause that is arguably pathological or that has a carve-out for certain claims is a vulnerability the respondent will exploit at the hearing.

Check the governing law of the arbitration agreement separately from the governing law of the contract as a whole. Under English and Hong Kong common law, these can differ, and the court will apply the law of the arbitration agreement when deciding whether the foreign proceeding breaches it.

Step 2 – Assess urgency and the case for ex parte relief

If the foreign proceeding is moving quickly – an ex parte injunction from a foreign court has been granted, or a default judgment is imminent – the applicant may need to seek relief from the Court of First Instance without notice to the respondent. The gate here is genuine urgency: the court will scrutinise the timeline, and an applicant who waited while the foreign proceeding advanced will face hard questions about why notice cannot be given.

In our experience, the standard for ex parte anti-suit relief is high. The applicant must demonstrate a good arguable case that the foreign proceeding breaches the arbitration agreement, a real risk of injustice if the order is not granted immediately, and that it has come to court promptly. All three must be addressed in the supporting evidence. Counsel on our desk prepare the evidence file in tandem with the draft order – the two documents should speak to each other precisely.

Step 3 – Prepare and file the application

The application is made to the Court of First Instance by originating summons. The supporting affidavit must exhibit the arbitration agreement in executed form, the pleadings or originating documents from the foreign proceeding, and evidence of the respondent's connection to Hong Kong or its assets here. Where the application is on notice, the respondent will have the opportunity to cross-examine and to file evidence in answer.

The draft injunction order must be precise about what it restrains. An order in terms wide enough to catch proceedings the applicant did not contemplate will be varied on the respondent's application; an order too narrow will not protect the arbitration. Drafting the order is a matter of judgment that should not be delegated to a template.

Step 4 – The inter partes hearing and the balance of convenience

If an ex parte order is granted, it will be returnable for an inter partes hearing, usually within days. If the application is made on notice from the outset, the inter partes hearing is the first hearing. The court applies the established cross-undertaking in damages: the applicant must be prepared to compensate the respondent if the injunction turns out to have been wrongly granted.

The balance-of-convenience analysis weighs the risk of irreparable harm on each side. For anti-suit injunctions in support of arbitration, the Hong Kong courts have recognised that a party being forced to litigate in a forum it did not agree to is itself a form of harm – but this does not eliminate the need to demonstrate it on the facts.

Step 5 – Coordinate with the arbitral tribunal

The injunction application is not a substitute for advancing the arbitration itself. The tribunal should be notified of the competing proceeding and, where appropriate, asked to proceed on an expedited basis. The HKIAC Administered Arbitration Rules (effective 1 June 2024) include an expedited procedure and emergency arbitrator provisions – the latter designed for relief that must be obtained before a tribunal is constituted. The emergency arbitrator process is ordinarily completed within 14 days of file transmission.

Coordination matters because the court and the tribunal are operating in parallel. A tribunal ruling on its own jurisdiction strengthens the factual basis for maintaining the injunction at the inter partes stage. A tribunal that appears to be stalled undermines it.

For Hong Kong-seated arbitrations, the interim-measures Arrangement (the mutual assistance mechanism between the Hong Kong SAR and the Mainland in aid of arbitral proceedings) has been in effect since 1 October 2019. This allows a party to a Hong Kong-seated arbitration to apply to a Mainland people's court for interim measures – a route that runs alongside, not instead of, the Hong Kong court application. The interaction between the two is discussed in our guide to interim measures from Mainland courts in aid of Hong Kong arbitration.

What do foreign counsel get wrong?

The most common error we see is treating the anti-suit injunction as a pure litigation exercise – a court application to be won on its own terms – rather than as a step in the enforcement sequence. The question is not only whether the court will grant the order. The question is what happens when the respondent ignores it, or when the applicant needs to convert the arbitral award into money in a jurisdiction where the injunction has no direct effect.

A second recurring error involves delay. Counsel advising a client that has been served with foreign proceedings will sometimes spend weeks analysing the merits of the foreign claim before addressing the injunction option. By the time the analysis is complete, the foreign court has granted a default judgment or advanced to a stage where the balance of convenience now favours letting the proceeding run. The gate at each step in this guide closes as time passes.

A third error – specific to the cross-border context – is failing to account for the changed enforcement position under Cap. 645. Before 29 January 2024, a Mainland court judgment could only be enforced in Hong Kong under the more limited regime it replaced. The broadened scope of the current regime means that a parallel Mainland proceeding now carries a materially higher enforcement risk for a Hong Kong-based respondent than it did previously. That changes the risk analysis and, in turn, the urgency of the injunction application.

The sequence above describes the standard position. Your matter turns on the documents, the jurisdictions actually engaged, and the order of steps – which is where the route is won or lost. To discuss how the sequence applies to your cross-border position, contact info@lockhartyip.com.

How does the Mainland–Hong Kong interface affect the analysis?

Hong Kong operates under a common-law system that is legally distinct from the Mainland's civil-law system. That boundary is productive for international parties: Hong Kong's courts and arbitral institutions function on well-tested common-law principles, with English as an official working language of the courts. The boundary also creates friction when parallel proceedings straddle it.

The Mainland people's courts will not, as a general rule, recognise or give effect to a Hong Kong court injunction restraining a Mainland proceeding. An anti-suit injunction aimed at a Mainland proceeding therefore operates in personam: it binds the respondent, not the foreign court. If the respondent has assets or operations in Hong Kong or in a jurisdiction that will enforce the injunction, this is sufficient. If it does not, the applicant must think carefully about whether the injunction achieves anything beyond applying pressure.

Conversely, the Mainland courts have their own mechanisms for addressing jurisdictional conflict, and it is increasingly common for Mainland courts to hold that a valid arbitration agreement ousts their jurisdiction. A coordinated approach – raising the arbitration agreement in the Mainland proceeding while simultaneously pursuing injunctive relief in Hong Kong – is generally more effective than treating the two fronts in isolation.

Our briefing on the reciprocal enforcement of judgments regime addresses the enforcement dimension in more detail, including the scope and exclusions under Cap. 645.

How does the same analysis apply in third-jurisdiction cases?

Not every parallel proceeding involves the Mainland. We regularly advise on cases where the competing forum is a BVI or Cayman court (typically tied to an offshore holding entity dispute), a Singapore court, or a civil-law court in a CIS or Gulf state. The cross-border analysis differs by forum.

For BVI and Cayman parallel proceedings, the common-law heritage of both jurisdictions means that an arbitration agreement will generally be given effect by those courts if properly argued, and a Hong Kong anti-suit injunction may carry persuasive weight. The practical issue is often speed: the party that moves first in the relevant court tends to shape the procedural posture.

For civil-law jurisdictions, the arbitration-agreement analysis may rest on different grounds, and the concept of an in personam injunction needs to be translated into terms the local court and enforcement system will recognise when the time comes. This is where the cross-border coordination between Hong Kong counsel and allied counsel admitted in the relevant jurisdiction becomes important – and where the asset endgame analysis must begin before the injunction application is filed.

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

Decision checklist before filing

Use this checklist before the application is made. Each item is a gate. If an item cannot be confirmed, address it in the evidence or the strategy before proceeding.

• Agreement confirmed: the arbitration agreement in its executed form covers the dispute now being pursued in the foreign forum.
• Governing law identified: the governing law of the arbitration agreement (separate from the contract) has been confirmed.
• Seat confirmed: the arbitral seat is Hong Kong, or the Court of First Instance otherwise has jurisdiction to grant relief.
• Respondent's position mapped: the respondent's assets and presence in Hong Kong or in an enforcing jurisdiction have been identified.
• Enforcement endgame analysed: the route from injunction to award to enforcement has been mapped in each relevant jurisdiction.
• Urgency assessed: the timeline of the foreign proceeding has been reviewed; the case for ex parte relief has been assessed and documented.
• Cross-undertaking in damages: the applicant is in a position to give a cross-undertaking, and the financial exposure has been considered.
• Tribunal notified: the arbitral tribunal (or the administering institution) has been informed of the parallel proceeding.
• Interim measures (Mainland) considered: where the seat is Hong Kong and Mainland assets are relevant, the interim-measures Arrangement has been considered.
• Evidence file prepared: the executed agreement, the foreign pleadings, and the respondent's Hong Kong nexus are exhibited and ready to file.

Our full disputes and arbitration practice is set out at the Disputes & Arbitration practice page.

Related practices

• Disputes & Arbitration – arbitration, enforcement and cross-border dispute strategy from a Hong Kong base
• Holding Structures – structuring holding entities across Hong Kong, BVI and Cayman to support enforcement

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Related

• Disputes Arbitration
• Interim Measures From Mainland Courts Aid Hong Kong 6
• Reciprocal Enforcement Judgments Regime Mainland Briefing

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