Anti-suit and anti-arbitration injunctions in Hong Kong

A parallel proceeding filed in the wrong forum can stall or destroy a well-founded claim. For groups with cross-border exposure to Greater China, the question of which forum has authority – and which court can restrain a party from pursuing a rival one – is frequently where the litigation is actually won or lost.

Hong Kong courts have jurisdiction under the Arbitration Ordinance (Cap. 609) and their inherent equitable jurisdiction to grant anti-suit injunctions restraining foreign proceedings that breach an arbitration agreement, and to grant anti-arbitration injunctions restraining arbitral proceedings in limited circumstances. The governing instruments are the Arbitration Ordinance, the rules of court, and – for the enforcement endgame – the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645), which came into force on 29 January 2024. This page sets out how we advise foreign principals through the process.

The sections below move from the commercial trigger, through the procedural route and the client's own decision points, to the cross-border enforcement position and the next step for principals who need to act.

When does a foreign principal actually need this?

A party needs an anti-suit or anti-arbitration injunction when a counterparty is using, or threatening to use, the wrong forum to gain a procedural advantage. That rarely arrives as an abstract legal question. It arrives as a crisis.

The most common trigger in our cross-border practice is a Mainland Chinese counterparty commencing proceedings before a people's court after having signed an agreement with an arbitration clause seated in Hong Kong. The motive varies: to obtain an early injunction, to pre-empt an adverse award, or simply to force the other side into expensive parallel litigation. In each case, the clock starts the moment the foreign filing is served – or, in some situations, before service where the risk is known.

A second pattern involves one party commencing arbitration under a contract where the other side disputes the validity of the arbitration clause entirely. Here, the responding party may seek to restrain the arbitration itself. Anti-arbitration injunctions are granted sparingly – the courts are acutely conscious of the pro-arbitration policy embedded in the Arbitration Ordinance – but they remain available where the arbitration is clearly abusive or where the tribunal plainly has no jurisdiction.

The practical trigger for engaging counsel is almost always temporal. An application for interim relief, once the rival proceeding is underway, requires urgent action. Delay can result in the foreign court entrenching its position, obtaining undertakings, or issuing an order that is difficult to unpick. If the risk is visible before proceedings are issued, early advice is materially more valuable than crisis management after the fact.

What makes Hong Kong unusually well-placed for this work is its position at the intersection of the common-law system and the Mainland legal order. The courts can grant injunctions that operate in personam against parties within Hong Kong's jurisdiction, and the city's enforcement links to the Mainland – both for arbitral awards and, since January 2024, for civil and commercial judgments – mean that the asset endgame is reachable from a single forum.

What are the governing instruments and mechanisms?

The primary instrument for anti-suit injunctions in the arbitration context is the Arbitration Ordinance (Cap. 609), which adopts the UNCITRAL Model Law and preserves the court's power to support arbitral proceedings. Where a party commences foreign court proceedings in breach of an arbitration agreement governed by that Ordinance or seated in Hong Kong, the court's jurisdiction to restrain those proceedings is well-established.

The court applies an equitable test rooted in the English common-law tradition: it asks whether the foreign proceedings are vexatious or oppressive, and whether the balance of convenience favours the grant of relief. Critically, the applicant must demonstrate that it is a party to the arbitration agreement, that the agreement is binding, and that the foreign proceeding falls within its scope. Each of those three conditions requires documentary analysis before an application is filed.

For anti-arbitration injunctions – where a party seeks to restrain the arbitration itself – the threshold is deliberately higher. The courts apply the pro-arbitration policy of the Arbitration Ordinance and will not readily interfere with a seated arbitration merely because one side disputes jurisdiction. The typical grounds are that the arbitration agreement is void on its face, that the seat is not Hong Kong, or that there is manifest abuse of process. Counsel on our desk regularly encounter applications that founders or in-house teams have framed as anti-arbitration claims when the correct route is a challenge to jurisdiction within the tribunal itself.

Separately, where interim measures are needed across the Mainland–Hong Kong boundary, the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region has been in effect since 1 October 2019. Under that Arrangement, a party to a Hong Kong-seated arbitration may apply to a competent Mainland court for interim measures in support of those proceedings. This is a distinct route from the anti-suit injunction, but both tools are often deployed in sequence.

For the enforcement endgame, Cap. 645 replaces the older choice-of-court regime and significantly broadens the categories of Mainland civil and commercial judgments that can be registered and enforced in Hong Kong, and Hong Kong judgments in the Mainland. This matters for anti-suit injunction strategy: the relief obtained before the Hong Kong court, including any undertakings in damages, feeds directly into the asset map that determines whether an eventual award or judgment is collectible.

The sequence above describes the standard position. Your matter turns on the specific documents – the arbitration clause, the governing law, the identity and location of assets – and on the order of steps taken, which is where the strategic outcome is often decided.

To discuss the governing instruments and how they apply to your counterparty and asset position, contact info@lockhartyip.com.

How does the cross-border dimension change the analysis?

Anti-suit and anti-arbitration injunctions are in personam remedies: they bind the party, not the foreign court. That distinction has immediate practical consequences in a Mainland–Hong Kong cross-border context.

A Hong Kong court can grant an injunction restraining a party within its jurisdiction from continuing Mainland proceedings. It cannot tell the Mainland court to stop. The Mainland court will – as a matter of comity and of its own procedural rules – continue to exercise jurisdiction unless and until the party before it withdraws or the Mainland court itself rules that it lacks jurisdiction. This creates a window in which two proceedings may run simultaneously, each generating orders that the other system will not automatically recognise.

The practical consequence is that speed and sequence matter enormously. An anti-suit injunction obtained quickly, before the Mainland proceeding advances to a substantive hearing, is considerably more useful than one obtained after the foreign court has already issued judgment on jurisdiction. In our cross-border practice, we have seen cases where the failure to move within the first two to three weeks of the rival filing materially reduced the value of the eventual relief.

The position is further complicated where assets are split across jurisdictions. If the principal assets are on the Mainland and the arbitration agreement points to Hong Kong, the applicant must think simultaneously about the injunction (to stop the foreign proceeding), the arbitral-award enforcement route (via the 1999 Arrangement and the 2020 Supplemental Arrangement), and the judgment-registration route (via Cap. 645 for any eventual court judgment). These are distinct mechanisms, and they must be mapped before the first application is filed.

A scenario that arises with some frequency in our desk's work involves a group with a BVI holding entity, a Hong Kong intermediate company, and operating assets in the Mainland. The counterparty commences proceedings before a Mainland people's court, citing a clause that the applicant says is superseded by a later arbitration agreement. The immediate question is not which court is right – it is which forum can move fastest to crystallise the legal position, and which enforcement routes will be open at the end of that process. The anti-suit injunction application in Hong Kong is the opening move in a multi-step sequence, not a standalone remedy.

Singapore arises as a comparison point where contracts provide for arbitration under the Singapore International Arbitration Centre rules or specify Singapore as an alternative seat. Hong Kong counsel regularly advise on the choice between the two seats at the drafting stage, and the selection has direct consequences for which court has jurisdiction to grant anti-suit relief and which enforcement arrangements apply on the Mainland side.

What is the procedural route – and where does locally licensed counsel join?

The procedural route for an anti-suit injunction application in Hong Kong runs, in broad terms, through four stages: preparation of the application, the ex parte or inter partes hearing, the return date, and the final disposal or undertakings.

In urgent cases, the first application is made ex parte – without notice to the other side – on the basis that delay would defeat the purpose of the relief. The applicant files evidence of the arbitration agreement, evidence of the foreign proceeding, and submissions explaining why the balance of convenience favours an injunction. The court sets a return date, usually within a short period, at which the respondent may appear and challenge the interim order.

At the inter partes hearing, both sides argue the merits of the injunction on a more complete factual record. The court determines whether the foreign proceedings fall within the arbitration agreement, whether they are vexatious or oppressive, and whether the balance of convenience and adequacy of damages as an alternative remedy point toward or away from relief. The respondent frequently challenges the scope and validity of the agreement itself at this stage.

Undertakings in damages – given by the applicant to compensate the respondent if the injunction later proves to have been wrongly granted – are almost always required. The quantum exposure under those undertakings is a live commercial consideration that the client must understand before authorising the application.

Our role is to direct the strategy, manage the cross-border dimensions, and coordinate all materials. Because the application is filed in the Hong Kong courts and involves argument of Hong Kong procedural law, locally licensed Hong Kong firms with whom we work handle the advocacy and filing. This is a consistent feature of our coordination model: we do not hold ourselves out as practising the law of Hong Kong, and the division of roles between our international advisory function and locally licensed counsel is made explicit to the client from the outset.

The principal documents the client must provide at the preparation stage are: the contract containing the arbitration clause; any subsequent amendments; correspondence evidencing the dispute; and the foreign court filing itself or, where the threat is anticipated, evidence of the threatened breach. Delay in assembling these materials is the most common single cause of procedural difficulty in urgent injunction applications.

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

What must the client own – and what decisions cannot be delegated?

An anti-suit or anti-arbitration injunction application is a high-stakes procedural move. Several decisions in its course cannot be delegated to counsel, however experienced, because they involve commercial risk that only the principal can assess.

The first is the decision to move at all. An anti-suit injunction application alerts the counterparty that the applicant is treating the arbitration clause as binding and is willing to litigate that point aggressively. In some commercial relationships, that escalation is exactly right. In others, it forecloses a negotiated resolution. The applicant must make that call with full information about the relationship and the asset position.

The second is the undertaking in damages. As noted above, the court will require the applicant to undertake to compensate the respondent if the injunction is later discharged. The applicant must assess its exposure under that undertaking – which may be substantial if the counterparty can demonstrate losses suffered by reason of being restrained from pursuing its foreign proceeding. That assessment is a business judgement, not a legal one.

The third is the question of parallel arbitration. Where an anti-suit injunction is sought in support of an arbitration agreement, the applicant typically also initiates, or has already initiated, the arbitration itself. The strategy must be coordinated: the scope of the arbitration clause asserted before the court must be consistent with the claims advanced in the arbitration. Inconsistency between the two positions has been used by respondents to undermine both proceedings.

The fourth is the asset map. An injunction that is not backed by an asset-enforcement plan is a procedural trophy. The client must, early in the engagement, provide counsel with a clear account of where the counterparty's relevant assets sit – in Hong Kong, on the Mainland, offshore, or in a third jurisdiction – so that the enforcement route from the final award or judgment to collection can be mapped in advance.

What we do on our desk is assist the client to make each of these decisions with the cross-border legal analysis in place. The commercial decision remains the client's. The legal architecture is ours to build.

What mistakes do foreign principals most commonly make?

The single most common error we see is delay. Principals who learn of a rival foreign filing frequently spend two to three weeks in internal deliberations before contacting counsel. By that point, the foreign court may have held a preliminary hearing, issued interim orders, or accepted jurisdiction on a basis that will be treated as res judicata – a decided matter that cannot be re-opened – in subsequent proceedings.

A second error is conflating anti-suit relief with the underlying merits. An anti-suit injunction is a procedural remedy that stops the wrong forum from running. It does not decide who wins the underlying dispute. Principals sometimes expect the injunction application to vindicate their substantive position; when it does not – because the court confines itself to the forum question – they are unprepared for the arbitration or litigation that must follow.

A third error, particularly among European and American in-house teams, is treating Hong Kong as a common-law jurisdiction indistinguishable from English courts. The principles are closely related, but the Mainland–Hong Kong interface, the specific arrangements for interim measures and mutual enforcement, and the treatment of PRC-seated arbitrations are distinct. Advice anchored purely in English or Singaporean precedent will miss the features of the Hong Kong regime that matter most in a Greater China cross-border dispute.

A fourth error is failing to coordinate the anti-suit application with the arbitration itself. Where the applicant has already commenced arbitration, the arbitral tribunal may itself have something to say about the foreign proceeding – and in some cases, an emergency arbitrator application under the 2024 HKIAC Administered Arbitration Rules can move faster than a court application. The two routes are not mutually exclusive, but they must be coordinated from day one.

Finally, principals sometimes underestimate the importance of the undertaking in damages. They authorise the application and are then surprised when the quantum of potential liability under the undertaking becomes a negotiating point. A clear-eyed assessment of that exposure before the application is filed is essential.

How does the asset endgame connect to injunction strategy?

An anti-suit injunction is a means to an end, not an end in itself. The endgame is collection: enforcing the award or judgment where the counterparty's assets actually sit.

For Mainland assets, the enforcement route for Hong Kong-seated arbitral awards runs through the 1999 Arrangement and the 2020 Supplemental Arrangement, which now permit simultaneous enforcement applications in multiple Mainland courts. The enforcement route for Hong Kong court judgments in civil and commercial matters runs through Cap. 645 for judgments made on or after 29 January 2024. The two routes are distinct, and the applicable route depends on whether the proceeding that generated the final decision was arbitral or curial.

The anti-suit injunction strategy must be designed with both routes in mind. If the underlying contract's arbitration clause is strong and the assets are on the Mainland, the preferred endgame is usually an arbitral award enforced via the Arrangements. If the clause is weak or contested, and the claim might end up before the Hong Kong courts, the judgment-registration route under Cap. 645 is the fallback. The injunction application itself must be framed to keep both routes open rather than closing one prematurely.

Offshore assets introduce a further dimension. Where the counterparty holds BVI or Cayman Islands companies as intermediate holding entities above Mainland operating assets, the enforcement analysis must extend to those jurisdictions. Hong Kong counsel can advise on the cross-border strategy; enforcement in the BVI or Cayman Islands requires allied counsel admitted in those jurisdictions, whom we coordinate as part of the engagement.

The connection between the injunction strategy and the asset endgame is the reason that a full asset map – including the identity of holding entities, the location of bank accounts, and any existing security over operating assets – is the first substantive document we ask for when a new matter of this kind is opened on our desk.

See also our related guide at New York Convention enforcement route through Hong Kong for the full enforcement picture beyond the injunction stage.

Self-assessment: when should you move this week?

This checklist is not legal advice. It is a prompt to determine whether the position has already reached a level of urgency that warrants immediate engagement with counsel.

• Has your counterparty filed, threatened to file, or indicated an intention to file proceedings before a court in a jurisdiction other than the agreed arbitral seat?
• Is there an arbitration agreement in place that covers the dispute in question, or whose scope is genuinely arguable?
• Is it less than three to four weeks since you became aware of the rival filing or the credible threat of it?
• Are the counterparty's principal assets located in Hong Kong or the Mainland, or held through a Hong Kong-connected holding structure?
• Has an arbitration been commenced, or is the client ready to commence one?
• Are there Mainland-side assets against which an interim measure or award enforcement would be sought?

If three or more of those questions produce an affirmative answer, the position warrants urgent advice. If all six do, the matter may already be time-critical.

We regularly advise on disputes and cross-border enforcement of this kind through our disputes and arbitration practice. Shareholder and joint venture disputes involving a Mainland partner raise closely related questions – see our note on shareholder and joint venture disputes with a Mainland China partner for the structural context.

Related practices

• Disputes & Arbitration – cross-border enforcement, arbitration strategy and Hong Kong court proceedings
• Holding Structures – structuring the holding layer to support enforcement and asset protection

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Related

• Disputes Arbitration
• Shareholder Joint Venture Disputes Mainland China Partner Mainland 3
• New York Convention Enforcement Route Through Hong Kong 10

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