Matter note: anti-suit and anti-arbitration

Anti-suit and anti-arbitration injunctions are among the most time-sensitive applications a cross-border disputes counsel will bring before the Hong Kong courts. The Court of First Instance has a well-established equitable jurisdiction to restrain a party from pursuing foreign proceedings that breach an arbitration agreement – and, conversely, to restrain a party from commencing or continuing an arbitration where the arbitration agreement itself is the subject of a bona fide challenge. The Arbitration Ordinance (Cap. 609), modelled on the UNCITRAL Model Law, provides the statutory backdrop; the court's inherent jurisdiction and equitable powers supply the practical mechanism. Speed is the critical variable. Once a foreign court is seised of proceedings, the calculus for any injunctive relief shifts materially.

This matter note describes an anonymised cross-border dispute in which both types of injunctive relief were in play simultaneously. Names, commercial terms and identifying details have been removed. The transferable lesson sits in the sequence.

The situation: two forums, one agreement

The matter arose from a commercial relationship between a group with its principal operating entity in the Mainland and a counterparty whose contractual holding structure sat in the British Virgin Islands. The underlying contract – a multi-year supply and distribution arrangement – contained an arbitration clause that named Hong Kong as seat and the HKIAC Administered Arbitration Rules as the procedural code. The clause was, on its face, unambiguous.

A breakdown in the commercial relationship produced a payment claim. Before the claimant could file a notice of arbitration with the HKIAC, the counterparty commenced court proceedings in a jurisdiction outside Hong Kong – a jurisdiction where, it later emerged, the counterparty had recently established an operating presence. The effect was deliberate: to pre-empt the Hong Kong-seated arbitration by obtaining a stay or an anti-arbitration order from a foreign court before the arbitral tribunal was constituted.

The constraint for our client was not just speed. It was the fact that the foreign court had already scheduled an inter partes hearing on interim measures within a short window. Any application to the Hong Kong courts had to be filed, heard and determined before that hearing could produce an order binding on the parties in the foreign jurisdiction.

What was the cross-border legal problem?

The cross-border problem here is structural. An arbitration agreement is a contractual bargain: the parties have agreed that disputes will be resolved before a particular tribunal, under particular rules, at a particular seat. When one party breaks that bargain by going to a foreign court, the other party faces a choice of forums – and forums interact in ways that are not always predictable.

Hong Kong courts have long exercised the jurisdiction to grant anti-suit injunctions to protect Hong Kong-seated arbitrations. The jurisdiction is grounded in equity. The court acts in personam against the party who is acting in breach of the arbitration agreement, not against the foreign court itself. That distinction matters enormously in cross-border enforcement: the order runs against the person, and it is the person's conduct – continuing to pursue foreign proceedings – that constitutes the contempt if the order is disobeyed.

The anti-arbitration angle was the counterparty's response. Having been confronted with an imminent HKIAC filing, the counterparty applied to the foreign court for an order restraining commencement of the Hong Kong arbitration. Anti-arbitration injunctions issued by foreign courts are not automatically effective in Hong Kong, but they create a pressure on the claimant – particularly if the claimant has assets or operations in the foreign jurisdiction. That pressure is precisely what the counterparty was seeking to exploit.

In our cross-border practice, this pattern is not unusual. We regularly see a race-to-court dynamic where the party with the weaker arbitration-clause argument uses foreign-court proceedings as a tactical tool rather than a genuinely preferred forum.

The strategy and the turning point

The immediate question was sequencing. Two applications were available in Hong Kong: an anti-suit injunction to restrain the foreign proceedings, and – if the counterparty's challenge to the arbitration agreement had any arguable basis – a preliminary ruling on jurisdiction under the Arbitration Ordinance. The question was which application to lead with, and whether to seek interim relief before the full inter partes hearing.

We assessed three options. First, file an ex parte application for an interim anti-suit injunction, to be followed immediately by an inter partes hearing. Second, file the notice of arbitration first and rely on the HKIAC's emergency arbitrator procedure. Third, file both applications in parallel.

The emergency arbitrator route under the HKIAC Administered Arbitration Rules is a well-tested mechanism: proceedings are ordinarily completed within 14 days of file transmission to the emergency arbitrator. But the enforceability of an emergency arbitrator's order in the foreign jurisdiction was uncertain on the facts of this matter. A Hong Kong court order, by contrast, operates as a binding personal restraint enforceable by contempt proceedings in Hong Kong and, where assets exist, in Hong Kong's courts directly.

We led with the court application. The ex parte application was filed and heard within 48 hours of instruction. The Court of First Instance granted an interim anti-suit injunction, returnable on short notice for the inter partes hearing. That order was served on the counterparty before the foreign court's scheduled hearing.

The turning point was the inter partes stage. The counterparty argued that the arbitration clause was vitiated by a misrepresentation at the time of contracting and that the clause had been varied by a subsequent side letter. Both arguments were examined by the court at the inter partes hearing. The court applied the well-established test: whether, on the balance of convenience and the strength of the case for a continued injunction, the foreign proceedings should be restrained pending determination of the jurisdiction question. The interim injunction was continued.

The counterparty then applied to the Hong Kong courts for an anti-arbitration injunction of its own – an application that ran parallel with the anti-suit proceedings. That application rested on the same factual arguments: misrepresentation and variation. The court heard both sets of submissions in a consolidated hearing. The anti-arbitration application was dismissed at the interlocutory stage; the anti-suit injunction was maintained until the arbitral tribunal was constituted and had ruled on its own jurisdiction under the Arbitration Ordinance.

Sequence and what drove it

It is worth being precise about the steps, because the order of steps is often the deciding factor in this type of matter.

Step one: obtain an urgent assessment of the arbitration clause, the strength of any challenge to its validity, and the enforceability of a Hong Kong anti-suit order in the foreign jurisdiction. Step two: file the ex parte application with supporting evidence, focusing on the immediacy of the foreign-court hearing and the risk of irreparable harm if the injunction were refused. Step three: file the notice of arbitration with the HKIAC concurrently, to crystallise the claimant's position and prevent a later argument that the arbitration had been abandoned. Step four: serve both the ex parte order and the notice of arbitration on the counterparty before the foreign hearing. Step five: appear at the inter partes hearing with the merits materials prepared in advance, so that any shift from an interim to a full argument could be accommodated without delay.

The concurrent HKIAC filing served two purposes. It demonstrated that the claimant was asserting the arbitration agreement in good faith. It also engaged the procedural timeline of the HKIAC Administered Arbitration Rules, which provided a parallel track on jurisdiction if the court application had failed. Under the rules in force – the 2024 Rules, effective 1 June 2024 – the tribunal, once constituted, may rule on its own jurisdiction as a preliminary matter or together with the merits.

The foreign court stayed its proceedings as a matter of international comity once it was notified that a Hong Kong court had granted the anti-suit order. That stay was not a foregone conclusion, and it reflected, in part, the fact that the Hong Kong order had been obtained before the foreign court had itself made any substantive ruling. That sequence would have been irreversible if reversed.

The qualitative outcome and the transferable lesson

The arbitration proceeded in Hong Kong. The tribunal ruled on its own jurisdiction in favour of the claimant. The anti-suit injunction was discharged by consent once the jurisdictional ruling was issued, its purpose having been served. The matter moved to the merits phase.

What does this pattern teach? Several things are worth extracting.

The first is the primacy of speed. Anti-suit applications operate in a window. Once a foreign court has made a substantive interim ruling, the political and legal cost of disregarding it rises sharply, and the Hong Kong court's willingness to restrain compliance with a foreign order is correspondingly more qualified. The application must be made before the foreign proceedings reach that stage. That means identifying the risk early – ideally, as soon as a counterparty signals litigation in a forum other than the agreed seat.

The second is the importance of the arbitration clause itself. Clauses that name the seat unambiguously and incorporate institutional rules are substantially easier to enforce than bespoke or hybrid clauses with ambiguous seat designations. In our cross-border practice, we frequently encounter clauses drafted without legal advice that name a seat in one clause and a different governing law in another, creating a genuine conflict that a foreign court can use as the hook for its own jurisdiction.

The third is the interaction between court and tribunal. In this matter, the tribunal's jurisdiction ruling ultimately rendered the anti-suit injunction redundant. That is the intended design: the court protects the arbitration until the tribunal is in a position to govern its own process. But the interaction requires coordination. Counsel acting in both the court and the arbitral proceedings must ensure that positions taken before the tribunal are consistent with those argued before the court, and that procedural steps in one forum do not inadvertently prejudice the other.

The fourth is the asset endgame. An anti-suit injunction is, in the first instance, a personal restraint. Its value depends on the enforceability of a contempt order against the restrained party and, ultimately, on where assets sit. In this matter, the counterparty had assets within the reach of the Hong Kong courts. Where a counterparty's assets are entirely outside Hong Kong, a different enforcement route may need to be developed in parallel – including, where the assets are on the Mainland, engagement with the interim-measures Arrangement, which has been in effect since 1 October 2019.

For matters involving Mainland counterparties and assets, the interim-measures Arrangement between the Mainland and the HKSAR permits parties to Hong Kong-seated arbitrations to seek preservation orders from Mainland people's courts before or after an arbitral tribunal is constituted. That mechanism is a structural complement to the court's anti-suit jurisdiction. Used together, they address both the procedural threat – the foreign proceedings – and the asset-protection objective.

For cross-border enforcement more broadly, the position has also changed with the coming into force of the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) on 29 January 2024. That regime applies to civil and commercial judgments – not arbitral awards, which remain governed by the separate Arrangement – but it is relevant to any parallel litigation strategy and to the question of what happens if the arbitral process ultimately produces a judgment-shaped outcome through consent or default. Parties managing multi-jurisdictional disputes involving both arbitration and litigation should take both regimes into account.

Our disputes and arbitration practice handles anti-suit and anti-arbitration applications as part of a broader enforcement strategy. The analysis of a Cyprus-seated award enforcement route through Hong Kong is examined in our separate analysis on enforcing arbitral awards from Cyprus; the procedural architecture of HKIAC-administered proceedings in cross-border commercial contracts is addressed in our analysis of HKIAC arbitration and Cayman-structured contracts.

If an anti-suit or anti-arbitration threat is live – or if foreign proceedings have already been commenced against an arbitration clause – the window for effective relief is short. Early instruction is not a precaution; it is a prerequisite.

The sequence described in this note is one that we have managed on multiple cross-border disputes involving Greater China counterparties, BVI and Cayman holding structures, and enforcement routes that span Hong Kong, the Mainland, and offshore centres. The pattern is consistent: the outcome turns on the first 72 hours.

Related practices

Disputes & Arbitration – cross-border enforcement, arbitration and injunctive relief strategy
Holding Structures – offshore and Hong Kong entity design affecting dispute exposure

Frequently asked questions

How does the cross-border element affect anti-suit and anti-arbitration injunctions in Hong Kong?

The cross-border element determines both the urgency and the strategic options. Hong Kong courts issue anti-suit injunctions in personam against parties who breach an arbitration agreement by pursuing foreign proceedings; the order does not bind the foreign court but binds the party's conduct. Where the counterparty has assets or operations in multiple jurisdictions, counsel must map those assets at the outset and identify which enforcement mechanisms – court contempt, the interim-measures Arrangement for Mainland-sited assets, or parallel arbitral relief – are available in each seat. The jurisdictions actually engaged, and the order of steps, determine whether relief can be secured in time.

What does the route look like for anti-suit and anti-arbitration injunctions in Hong Kong?

The route moves in two parallel tracks. On the court track, the applicant files an ex parte application for an interim anti-suit injunction, supported by evidence of the breach and the risk of harm; this is followed by an inter partes hearing at which the court decides whether to continue the injunction. On the arbitral track, the notice of arbitration is filed concurrently to crystallise the seat and engage the HKIAC's procedural timeline under the current rules. Once the tribunal is constituted, it rules on its own jurisdiction; if that ruling supports the applicant, the court injunction can be discharged by consent. The court and tribunal tracks require coordinated management: inconsistent positions in the two forums create vulnerabilities that the opposing party will exploit.

What is the first step in anti-suit and anti-arbitration injunctions in Hong Kong?

The first step is an urgent review of the arbitration clause, the foreign proceedings, and the available assets within Hong Kong's reach. That review determines whether the clause is enforceable on its face, whether any challenge to it is arguable, and whether an ex parte application is the correct lead move or whether a concurrent emergency-arbitrator route under the HKIAC Administered Arbitration Rules better serves the enforcement objective. That analysis must be completed rapidly: once the foreign court holds an inter partes hearing on interim measures, the window for effective relief in Hong Kong narrows materially. Parties should contact international counsel as soon as foreign proceedings are signalled – not after they are served.

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

Matter note: anti-suit and anti-arbitration injunctions in Hong Kong