Revue - Les Cahiers de l'Arbitrage N°1-2023 - 87

DOCTRINES - DÉBATS
from maintaining their pending enforcement action in the district court or from
seeking enforcement of the award anywhere else in the world. 132
NextEra Energy
and 9REN Holding immediately responded by seeking, and obtaining, from the
district court an anti-anti-suit injunction barring Spain from maintaining the Dutch
and Luxembourg actions. 133
The U.S. court rejected the notion that a foreign antienforcement
injunction, assuming one were to be issued, would have any effect
on its own jurisdiction:
Considerations of comity, while deserving substantial respect, do not outweigh
the need for an anti-suit injunction in this case. 134
...
[T]he express and primary purpose of Spain's suit in the Netherlands [is to]
order[] [Claimant] to withdraw this suit, imposing penalties upon failure to do
so, and issuing a worldwide injunction preventing [Claimant] from taking any
action to confirm the Award ... That leaves the court with " the stark choice of
either protecting or relinquishing [its] jurisdiction " over [Claimant's] petition.
... The court concludes that these " most compelling circumstances " require an
anti-suit injunction [citing Laker Airways Ltd. v. Sabena, Belgian World Airlines,
731 F.2d 909, 926, 927-930 (D.C. Cir. 1984)]. 135
...
An anti-suit injunction is strong medicine. But here it is required-and will
be tailored-to meet the force of Spain's attempt to deprive this court of
jurisdiction. 136
How the Dutch and Luxembourg courts respond to what amounts to an antianti-suit
injunction by the U.S. court, remains to be seen. This is because appeals
have been brought by Spain against the rulings in NextEra Energy and 9REN Holding
to the U.S. Court of Appeals for the District of Columbia, and NextEra Energy
and 9REN Holding have appealed to the same court against the ruling in Blasket
Renewable. The parties have agreed to suspend proceedings pending the appeals.
The decision by the Court of Appeals is of course, at the time of writing this article,
eagerly awaited. Concurrent actions for an anti-arbitration injunction in one court
and a counter anti-suit injunction in a court in the targeted jurisdiction are not
unknown, but neither are they common. 137
how an impasse of that sort will be resolved. 138
It can never be predicted in advance
Much depends on each party's
132. See Spain filed its request with the Dutch court on December 22, 2022, www.iareporter.
com/articles/dispute-over-enforcement-of-intra-eu-icsid-award-against-spain-heats-up-as-both-partiesto-the-nextera-v-spain-arbitration-seek-anti-suit-injunctions/
(last visited Mar. 9, 2023).
133. NextEra Energy, supra note 122.
134. Id. p. 19.
135. Id. p. 18.
136. Id. p. 21.
137. See generally Richard Garnett, Anti-Arbitration Injunctions: Walking the Tightrope, 36 Arb.
Int'l 347 (2020); S.I. Strong, Anti-Suit Injunctions in Judicial and Arbitral Procedures in the United
States, 66 Am. J. Comp. L. 153 (2018).
138. In one case, a British bank successfully sought an anti-suit injunction from the English
High Court to avoid being joined as a defendant in a U.S. antitrust action. The U.S. plaintiff
then obtained a counter-anti-suit injunction. The U.K.-U.S. stalemate persisted until the House of
Lords ultimately vacated the English injunction. See British Airways Bd. v. Laker Airways, [1985]
A.C. 58 (1984); Laker Airways, Ltd. v. Pan American World Airways, Inc., 604 F. Supp. 280
(D.D.C. 1984).
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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