Issue 10 (11/8)
The principle of kompetenz-kompetenz, is the core jurisprudential rule in arbitration. The arbitral tribunal can decide its own jurisdiction as the first judge of his / her own constituted tribunal’s jurisdiction. However, the courts in some jurisdictions are issuing anti-arbitration injunctions which potentially lead to the derailing of the arbitral proceedings.
My article in the Malan Law Journal publication entitled “Perspectives on Anti-Arbitration Injunctions  3 MLJ ccxl” explores the different perspectives and approaches taken various jurisdictions for example, England, Singapore, Hong Kong, France and other jurisdictions on the extent of court intervention in stopping arbitral proceedings. However, such interventions rarely occur in Civil Law jurisdictions.
Recently, the Malaysian courts have been issuing anti-arbitration injunctions based on particular situations which uses general injunctive principles instead of allowing the arbitral tribunal to rule on its jurisdiction. This may be against the minimum intervention and maximum judicial support principle. For example, the the Malaysian court in Federal Land Development Authority & Anor v Tan Sri Haji Mohd Isa bin Dato Haji Abdul Samad & Ors (2021) has followed the Federal Court decision in Jaya Sudhir al Jayaram v Nautical Supreme Sdn Bhd & Ors (2019) whereby both applied the general test for interlocutory injunctions as per American Cyanamid test.
The court in Federal Land Development case stated where there is an overlapping of issues in arbitration proceeding and the issues in court proceeding which cannot be divided distinctly, it is best to proceed for the court to decide on the matter. It would seem that this approach is prima facie inconsistent with the principle of kompetenz-kompetenz.
In summary, the article explores generally what is anti-arbitraton injunctions, views for and against them, the approach of the courts in Common Law and Civil Law countries, the changing approach adopted by the Malaysian courts, how anti-arbitration injunctions are dealt with in Investment arbitration. It ends with a question on how arbitral tribunals especially in internation commercial arbitrations will handle anti-arbitration injunction issued by a national court which truly interferes with the arbitral proceedings.
Datuk Professor Sundra Rajoo
President of the Asian Institute of Alternative Dispute Resolution (AIADR)
11th August 2021
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