Anti-suit injunction (injonction anti-poursuite)

An anti-suit injunction is an order by which a court directs a party not to commence or not to continue proceedings before a foreign court, on pain of sanctions. Of Anglo-American origin, it protects the jurisdiction of the court granting it or the effectiveness of a choice-of-court or arbitration clause. No French provision expressly provides for it, and its reception depends on EU law, general private international law and the nature of the proceedings targeted.

EU law and French law

The Court of Justice of the European Union holds such injunctions incompatible with the system of the Brussels I bis Regulation where they target proceedings brought before a court of another Member State, including to protect an arbitration agreement, since each court has jurisdiction to rule on its own jurisdiction. Outside that scope, the Court of Cassation accepts that a foreign injunction intended to enforce a jurisdiction clause is not contrary to international public policy, without thereby opening the way to French courts granting such measures freely.

Injunctions in standard essential patent litigation

Anti-suit injunctions have taken on considerable importance in disputes over standard essential patents. Certain courts, notably in China and the United States, have used them to prohibit the patent holder from suing for infringement elsewhere while they set the terms of a global FRAND licence. European courts have responded with anti-anti-suit injunctions, and the Paris courts have held, in summary proceedings, that a foreign injunction seeking to block an action for infringement of French patents could amount to a manifestly unlawful disturbance. The Unified Patent Court has also received applications of this kind.

International issues

The European Union challenged China’s anti-suit injunction policy in patent matters before the World Trade Organization, under the TRIPS Agreement, and the proceedings resulted in an arbitration award upholding part of the Union’s complaints. Recent case law of the CJEU, which allows the court of the defendant’s domicile to hear infringement claims concerning foreign patents, also multiplies the risk of parallel proceedings, and thus the temptation of cross-injunctions.

Key points

In a standard essential patent dispute, the risk of an anti-suit injunction must be managed before taking action. The courts the opponent might seise should be identified, and an application for protective relief before the competent European court should be ready to be filed urgently. Speed is decisive, as a foreign injunction obtained without adversarial debate can freeze the situation within days.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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