Abstract
The DIFC Courts have recently clarified the test governing applications for anti-suit injunctions in support of arbitration agreements. The correct inquiry is not whether foreign proceedings are vexatious or oppressive, but whether the respondent has breached a binding arbitration agreement and whether there is any sound reason not to enforce it. This article examines that clarification, situates it within the broader common law tradition, and draws out its practical consequences for DIFC arbitration practitioners. It also addresses the statutory framework, the available defences, and the strategic considerations that govern how such applications should be prepared and presented.
Introduction
There is something quietly paradoxical about anti-suit injunctions in arbitration. A remedy designed to vindicate a private contractual bargain must itself be sought from a court often urgently, invariably across jurisdictions and always against a party who has already decided to breach its agreement. The DIFC Courts have now made clear how they will respond when that happens.
Arbitration agreements are entered into with the intent that litigation before courts (and its disadvantages) be avoided and parties are better able to dictate the terms of any future disputes. However, despite the terms of a binding agreement, in practice, parties do not always succeed. Parties commence foreign court proceedings despite having agreed to arbitrate, sometimes for tactical reasons, sometimes in genuine belief that their claims fall outside the arbitral scope, and sometimes simply to impose procedural cost on a counterparty. The commercial consequences are the same in every case: duplicated cost, fragmented procedure and the erosion of the efficiency that arbitration is designed to deliver.
A judgment of Justice Michael Black KC in Oswin v Otila and Ondray (ARB 032/2025, 21 October 2025)[1] provides important clarification of the applicable test. The Court observed that, in cases involving a breach of an arbitration agreement, the inquiry is not a free-standing assessment of whether the foreign proceedings are vexatious or oppressive, but whether the respondent has acted in breach of the arbitration agreement and whether there is any strong reason why the court should decline granting an injunction. That framing aligns the DIFC Courts with established common law authority and removes an analytical distraction that had occasionally complicated applications. The matter further confirmed that for DIFC seated arbitrations, the supervisory jurisdiction to grant interim relief remains with the DIFC, despite arguments that the Abu Dhabi court had jurisdiction over the matter.
This article examines that principle, its doctrinal foundations in England, Singapore, and Hong Kong, and its practical implications. It also addresses the defences that respondents may raise, the statutory framework underpinning the jurisdiction, and the strategic discipline required for effective applications.
The Contractual Foundation of Anti-Suit Relief
The starting point is elementary but sometimes overlooked in practice. An arbitration clause is a contract. It reflects a deliberate choice by sophisticated parties to resolve their disputes through arbitration rather than national courts. That choice carries legal consequences.
Where a party initiates foreign court proceedings in respect of matters falling within the scope of that clause, it acts in breach of a binding contractual obligation. Anti-suit relief in that context is not punitive. It is corrective. It restores the adjudicative framework the parties agreed to operate within.
This principle has deep roots within the common law. In The Angelic Grace,[2] Millett LJ stated that where a party has bound itself by contract not to bring proceedings in a foreign court, an injunction to hold it to that bargain should be granted unless there are strong reasons for not doing so. The court’s task is enforcement, not evaluation of the respondent’s conduct. This reasoning was affirmed by the House of Lords in Donohue v Armco,[3] where Lord Bingham confirmed that the court would ordinarily hold a party to its contractual dispute resolution clause, and that it is for the party seeking to avoid enforcement to identify a strong reason why it should not be bound.
The DIFC Courts have adopted this approach consistently. In Ledger v Leeor [2022] DIFC CA 013,[4] the Court of Appeal, rejecting the grant of anti-suit relief and upholding the DIFC CFI’s decision, emphasised that the grant of any interim relief such as the anti-suit relief sought in Leeor finds its basis in the contractual terms agreed between the parties. Narciso v Nash (ARB 009/2024, 20 June 2024)[5] sharpened that principle further. At paragraph 83, Justice Black KC stated directly: “Vexatious or oppressive” is not the applicable test, stating further that to allow proceedings in the Sharjah courts (against which the injunction was sought), would be “to permit the Defendant to act in breach of the Arbitration Agreement.” The question, rather, is whether there are good or strong reasons why the agreement to arbitrate should not be enforced.
That formulation is both correct and practical. It focuses the inquiry on objective contractual rights rather than the respondent’s subjective motivation, a distinction that matters considerably in the preparation and conduct of applications.
The Removal of the “Vexatious or Oppressive” Threshold
References to vexatious or oppressive conduct have appeared in authorities and commentaries on anti-suit injunctions for decades. Their origin lies in the equitable jurisdiction of English courts to restrain unconscionable conduct.
In practice, the vexatiousness threshold created real difficulties. It invited respondents to argue that their motives for commencing foreign proceedings were legitimate, that they had genuinely believed their claims fell outside the arbitral scope, or that the foreign forum offered procedural advantages that did not amount to oppression. It shifted attention from the contractual question to an evidentiary contest about intent. Neither inquiry is especially illuminating, and neither is necessary where the arbitration clause is clear.
The relevant question is not why the respondent commenced foreign proceedings. It is whether it was entitled to. If the parties agreed to arbitrate and the dispute falls within the scope of that agreement, the foreign proceedings are prima facie inconsistent with a binding contractual obligation. The court’s function is to enforce the contract, not to investigate the respondent’s state of mind.
That said, the language relating to vexatiousness has not disappeared entirely from the judicial vocabulary. It will appear in some judgments as a descriptive shorthand for foreign proceedings that are inconsistent with an arbitration agreement. Ivankovich v KJM Marine LLC & ors (DIFC CFI 068/2024, 26 March 2025)[6] illustrates this well: the Court referred to the foreign proceedings as “vexatious, oppressive and unconscionable”, but the decisive issue was not vexatiousness as a legal threshold; it was the inconsistency of the proceedings with the parties’ agreed jurisdictional framework. Practitioners should not read such language as importing a separate, more onerous requirement. What Oswin and Narciso make clear is that vexatiousness is not a condition precedent to anti-suit relief.
The Elements of a Successful Application
The clarification in Oswin and the earlier authorities establish a straightforward analytical structure. An applicant must demonstrate three things:
First, the existence of a valid and binding arbitration agreement. This is ordinarily established by producing the contract. Where the validity of the agreement is disputed whether on grounds of formation, capacity, or applicable law that dispute will need to be addressed, but it arises as a threshold issue rather than a component of the anti-suit analysis.
Second, that the foreign proceedings concern matters falling within the scope of that agreement. Most commercial arbitration clauses are drafted broadly covering disputes “arising out of or in connection with” the agreement and will ordinarily encompass related contractual and performance claims. Attempts to circumvent such language by reframing claims rarely survive careful judicial scrutiny. Where scope is genuinely in issue, a careful comparison of the pleaded foreign claims against the arbitral clause will usually resolve the question.
Third, the absence of compelling reasons not to enforce the agreement. The burden here lies with the respondent. It is not enough to argue that the foreign forum is more convenient, that it offers procedural advantages, or that the arbitration clause is commercially onerous. Having agreed to arbitrate, parties are ordinarily held to that choice. The categories of compelling reason are narrow and are addressed in section VI below.
Once the abovementioned three elements are established, relief should ordinarily follow. The evidentiary demands of the application are deliberately focused: the contract, the foreign court originating process, and evidence establishing that the subject matter of the foreign proceedings falls within the arbitral scope. Extensive documentation of procedural abuse or tactical misconduct is not required.
The Statutory and Jurisdictional Framework
The DIFC Courts’ authority to grant anti-suit injunctions rests on clear statutory foundations.[7] Article 15 of DIFC Court Law 2 of 2025 establishes the Courts’ jurisdiction to hear and determine applications for interim and precautionary measures. Article 24(C) confers the power to grant such relief, including injunctive measures. Article 24(D) extends that power explicitly to matters relating to arbitration.
Article 24(3) of the DIFC Arbitration Law 1 of 2008[8] further provides that the DIFC Courts may grant interim measures in support of arbitration proceedings regardless of the seat of the arbitration. The Courts are empowered to protect arbitration agreements falling within their jurisdictional reach, and the seat of the arbitration does not determine whether that power can be exercised.
This has a practical implication that the article would be incomplete without noting. A party subject to the personal jurisdiction of the DIFC Courts whether through presence, assets, or a submission to DIFC jurisdiction, may be restrained from pursuing foreign proceedings inconsistent with an arbitration agreement regardless of where that arbitration is seated. DIFC-seated arbitrations are the obvious case, but the provision extends further.
Anti-suit injunctions operate in personam: they bind the respondent, not the foreign court. They do not purport to interfere with the jurisdiction or sovereign authority of any foreign tribunal. They enforce a contractual obligation owed by a person amenable to the DIFC Courts’ jurisdiction.[9] This distinction between restraining conduct and asserting supremacy over a foreign court is fundamental to understanding how anti-suit relief operates and why it does not offend principles of comity.
Defences and When Relief May Be Refused
The contractual framework means that the defences available to a respondent are genuinely narrow. Courts have been careful not to allow the exceptions to swallow the rule. Nonetheless, a number of arguments may be advanced and practitioners should be alert to them.
Invalidity of the arbitration agreement is the most substantial defence. If the clause is void for reasons of formation, incapacity, illegality, or because it was never incorporated into the contract, there is no contractual obligation to enforce. Where this is raised, it goes to the threshold of the application and must be determined before relief can be granted.
The scope of the arbitration clause is narrow i.e., the foreign proceedings do not concern matters within the arbitral clause may also defeat an application, though as noted above, they are unlikely to succeed where the clause is broadly worded.
Waiver and acquiescence can be raised where the applicant has itself participated in the foreign proceedings without protest, or where its conduct has been contrary to the terms of the arbitration agreement. This defence has force where a party has taken substantive steps in the foreign proceedings before applying for anti-suit relief.
Third-party proceedings pose a distinct problem. Anti-suit injunctions are personal to the respondent. Where foreign proceedings are brought against or by a third party who is not bound by the arbitration agreement, the court cannot ordinarily restrain those proceedings through the same mechanism. Whether the foreign third-party claims can be characterised as brought at the respondent’s behest in breach of its own obligation is a factual question.
Courts have generally declined to refuse relief on grounds of convenience, delay in proceedings that have not yet reached an advanced stage, or the existence of related claims that could not be brought in arbitration. These factors go to the balance of convenience at best; they do not constitute the compelling reason required to defeat enforcement of a clear contractual commitment.
Strategic Considerations in Practice
Timing is the single most important practical variable. Delay in seeking anti-suit relief can weaken an otherwise compelling application. It allows respondents to argue acquiescence, and it risks the foreign proceedings progressing towards issuance of judgment, interim orders, or procedural integration where disruption becomes more complex and where arguments about wasted costs become substantially relevant.
The DIFC Courts are able to effectively dispose of urgent matters and practitioners must factor all substantial and procedural issues and timelines from the outset. The decision whether to apply ex parte or on notice, and how urgently to move, will often determine the practical effectiveness of the remedy.
Legal framing matters enormously. Applications structured around the contractual obligation to arbitrate presenting the arbitration clause, the foreign originating process and the scope analysis clearly and economically are more persuasive and more efficiently determined than those that lead with narratives of procedural abuse or tactical misconduct. The latter may be true, but the court does not need them.
Injunction drafting requires care. The order must be sufficiently specific to be enforceable and sufficiently clear to put the respondent on notice of precisely what it is restrained from doing. Overbroad drafting invites challenges; unduly narrow drafting may fail to catch parallel proceedings launched under a different procedural guise. The injunction should track the language of the arbitration clause while describing with precision the proceedings it restrains.
Finally, it is worth noting the interaction with undertakings in damages. On ex parte applications, the applicant will ordinarily be required to give an undertaking in damages. Where the foreign proceedings are of a significant commercial undertaking, the court may scrutinise the applicant’s financial position before granting relief. Practitioners should be prepared to address this point, particularly in urgent applications where full evidence may not yet be available.
The DIFC Courts in the International Context
The approach confirmed in Oswin places the DIFC Courts firmly within the mainstream of international arbitration jurisprudence. The courts of England and Wales, Singapore, and Hong Kong have each, in different ways, affirmed that arbitration agreements carry substantive legal weight and that courts will enforce them against parties who seek to circumvent them through litigation in alternative fora.
What distinguishes the DIFC is the combination of a sophisticated common law judiciary, a clear statutory framework and a demonstrated willingness to act at speed. These features make it a particularly effective jurisdiction for anti-suit relief in complex cross-border disputes.
For parties negotiating commercial contracts with DIFC arbitration clauses or submitting disputes to DIFC-related proceedings, the position is now clear; arbitration agreements governed by or falling within the jurisdiction of the DIFC Courts will be treated as binding contractual commitments and enforced accordingly.
Conclusion
The clarification provided by Justice Black KC in Oswin v Otila and Ondray restores attention to what has always been the right question: has the respondent breached a binding agreement to arbitrate, and is there any compelling reason not to enforce it? Anti-suit injunctions are not extraordinary remedies in this context. They are the ordinary judicial response to a contractual breach.
In placing that principle on a firm footing, the DIFC Courts have aligned themselves with the best international common law authority and removed a doctrinal distraction that had occasionally complicated practice. The result is a cleaner analytical framework, more focused evidentiary requirements, and more predictable outcomes for parties who seek to hold their counterparties to the dispute resolution terms they agreed.
Practitioners seeking anti-suit relief from the DIFC Courts should concentrate on the contractual foundation of their application. Where a valid arbitration agreement exists, and foreign proceedings have been commenced in breach of it, the basis for relief is clear, and the court has shown that it will act on it decisively.
* Dr Mahmood Hussain is Founding Partner at M&Co. Legal, UAE, and Tariq Khan is Partner and Head of International Disputes at M&Co. Legal, UAE. Both authors acted for the applicant in Oswin v Otila and Ondray (ARB 032/2025), with Tariq Khan serving as Lead Counsel and Dr Mahmood Hussain leading the applicant’s case on behalf of M&Co Law Firm. Tariq Khan can be reached at Tariq@mandcolegal.com.
[1]Oswin v (1) Otila and (2) Ondray (ARB 032/2025, DIFC CFI, 21 October 2025).
[2]Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyd’s Rep 87 (CA), per Millett LJ at [96].
[3]Donohue v Armco Inc [2002] 1 All ER 749 (HL), per Lord Bingham at 24.
[4]Ledger v Leeor [2022] DIFC CA 013.
[5]Narciso v Nash (ARB 009/2024, DIFC CFI, 20 June 2024), at [83].
[6]Ivankovich v KJM Marine LLC & Ors (DIFC CFI 068/2024, 26 March 2025).
[7]DIFC Court Law 2 of 2025, Articles 15, 24(C) and 24(D).
[8]DIFC Arbitration Law 1 of 2008, Art 24(3).
[9]Compare the approach in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35, where the UK Supreme Court affirmed that an anti-suit injunction may be issued to enforce a negative obligation implied in an arbitration agreement, independent of whether arbitration proceedings have been commenced.
