The Delhi High Court in Interdigital Technology Corporation v. Xiaomi
Corporation & Ors
has propounded a novel legal nomenclature namely
Anti-Anti-Suit Injunction (hereinafter referred to as A2SI) . The Delhi High
Court became the first court in India to pass an Anti-Anti-Suit Injunction and
subsequently drew the attention of the Indian legal fraternity.
Before we discuss the concept of A2SI, it is pertinent to first understand what
an anti-suit injunction is. In an Anti-suit injunction, an order is made against
a party in personam restraining them from instituting a legal action or from
continuing with proceedings that have already been instituted. In simple
terms, an anti-suit injunction prohibits a party from continuing a case in
another jurisdiction. The injunction can be granted in respect of proceedings in
either local and foreign courts.
The principles of an anti-suit injunction in India have been propounded by
various landmark judgements. In Modi Entertainment Network and Anr v WSG Cricket
the Hon'ble Supreme Court of India made instructive observations and
laid down the following principles
While granting an anti-suit injunction the Court must be satisfied of the
- The defendant, against whom injunction is sought, is amenable to the
personal jurisdiction of the court
- If the injunction is declined the ends of justice will be defeated and
injustice will be perpetuated; and
- The principle of comity: respect for the court in which the commencement
or continuance of action/proceeding is sought to be restrained – must be
borne in mind;
- Where there are more than one forums, the Court in exercise of its
discretion to grant anti-suit injunction has to examine and determine the
appropriate forum (forum convenience) – i.e. the convenience of the parties
and may grant anti-suit injunction in regard to proceedings which are
oppressive or vexatious or in a forum non-convenience;
- Where jurisdiction of a court is invoked on the basis of jurisdiction
clause in a contract, the recitals of the contract specifying exclusive or
non-exclusive jurisdiction of the court of choice of the parties are not
determinative but only the relevant factors. The court has to decide the
same on a true interpretation of the contract on the facts and in the
circumstances of each case;
- A court of natural jurisdiction will not normally grant anti-suit
injunction against a defendant before it where parties have agreed to submit
to the exclusive jurisdiction of a court including a foreign court, a forum
of their choice in regard to the commencement or continuance of proceedings
in the court of choice unless necessary in an exceptional circumstances
backed by sufficient reasons and with a view to prevent injustice in
circumstances such as,
- Which permit a contracting party to be relieved of the burden of the
- Or since the date of the contract the circumstances or subsequent events
have made it impossible for the party seeking injunction to prosecute the
case in the court of choice because the essence of the jurisdiction of the
court does not exist or because of a force majeure reasons etc.;
- Where parties have agreed, under a non- exclusive jurisdiction clause,
to approach a neutral foreign forum and to be governed by the law applicable
to it for the resolution of their disputes arising under the contract,
ordinarily no anti-suit injunction will be granted in regard to proceedings
in such a forum conveniens and favoured forum on the presumption that the parties have thought
over their convenience and all other relevant factors before submitting to
non-exclusive jurisdiction of the court of their choice which cannot be treated
just an alternative forum;
- A party to the contract containing jurisdiction clause cannot normally
be prevented from approaching the court of choice of the parties as it would
amount to aiding breach of the contract;
- However when one of the parties to the jurisdiction clause approaches
the court of choice in which exclusive or non- exclusive jurisdiction is
created, the proceedings in that court cannot per se be treated as vexatious
or oppressive nor can the court be said to be forum non-convenience;
- The burden of establishing that the forum of choice is a forum non-
convenience or the proceedings therein are oppressive or vexatious would be
on the party so contending to aver and prove the same.
Furthermore, in (India TV) Independent News Service Pvt Ltd v India Broadcast
Live LLC & Ors
, the Hon'ble Delhi High Court held that while deciding an
application for anti-suit injunction, held that 'factors such as convenience of
parties, expenses involved and law governing the transaction are important while
determining the appropriate forum'.
While the principles laid down in anti-suit injunction orders clearly state that
a party cannot take a continuing case to another jurisdiction, the Hon'ble Mr.
Justice C. Hari Shankar in Interdigital Technology Corporation vs. Xiaomi
Corporation held, inter alia, that it is impermissible for a court in one
sovereign jurisdiction to injunct a party before it from pursuing its cause
before a court in another jurisdiction, where such latter jurisdiction is the
only competent forum. The Supreme Court opined that it exercises personal
jurisdiction over Xiaomi, the defendant therein.
The dispute between Interdigital (plaintiff) and Xiaomi (defendant) is regarding
the violation of the Indian Patents IN 262910, IN 295912, IN 298719, IN 313036,
and IN before320182 registered under Standard Essential Patents (SEP) held by
interdigital without taking their due permission or license.
Therefore, the plaintiff has filed a suit against the defendant demanding the
decree of permanent injunction restricting the defendants to use its SEPs in
Or as an alternative, the plaintiffs contend that the defendants can be
permissible to use SEPs only if they enter into a licensing agreement with them
according to FRAND i.e. fair, reasonable and non-discriminatory terms.
However, the defendant before this case filed a SEP royalty rate-setting suit
(the Wuhan suit) on 9th June 2020 before the Wuhan Court against the plaintiff.
The order passed by the court on 23rd September 2020 revealed that there was no
violation of the patent as the suit primarily sought for the fixation of FRAND
compliant royalty rates between the plaintiff and the defendant to enable the
defendant to use the SEP technology of the plaintiff.
In addition to the present suit, the plaintiff also filed Interlocutory
Applications (IAs) under Order 39 Rules 1 and 2 of the Civil Procedure Code,
1908 and Chapter VII Rule 17 of the Delhi High Court (Original side) Rule, 2018
seeking interim reliefs and set up of confidentiality club respectively.
Summons in the current suit and notice in Interlocutory Applications 6440/2020
and 6441/2020 were issued by the Delhi High Court on 4th August 2020.
The defendant too filed an application pleading for an anti-suit injunction
before the Wuhan Court on the same day i.e. 4th August 2020 to restrain the
plaintiff from pursuing the suit against them.
Despite the ongoing proceedings in the Delhi H.C., the defendant did not inform
the court regarding the pendency of the anti-suit injunction application filed
by them before the Wuhan court or the issuance of notice to the plaintiff.
The order dated 23rd September 2020 by the Wuhan court revealed that serving the
summons by the court to the plaintiff is under progress and issued an anti-suit
injunction in a sense of behaviour preservation.
Judgement and findings:
The Delhi Court referred to the precedents set by both Indian and Foreign Court
judgements and propounded the following principles:
- It should be granted in rare cases as it may interfere with functioning
of a sovereign forum
- It could only be granted by a court which is the natural forum for the
dispute. Protection of the jurisdiction of a court is an important factor to
- The crucial test for an anti-suit injunction / anti-enforcement
injunction is if there is a possibility of palpable and gross injustice due
to non-grant of injunction;
- It could be granted where there is interference to pursue legal remedies
before a competent forum, as the same amounts to oppression;
- The principle of comity of courts would not apply when the foreign order
was offensive to domestic public policy or customary international law; and
- Certain instances would justify the grant of anti-enforcement
injunction, such as obtaining the judgment too quickly or secretly, and/or
fraudulently and/or where the applicant seeking such injunction had no means
of knowing of the same.
The Delhi HC has laid down methodology which the courts must approach
applications seeking anti-enforcement injunctions. Notably, the issue of 'comity
', whilst by no means ignored, has certainly been put alongside the
problem of vexatious and oppressive proceedings.
While the conduct of the parties and also the factual matrix in the instant case
played an important role in the Delhi HC coming to its judgment, this judgment
assumes greater significance for several other reasons. One must keep in mind
that this area of law i.e., issuance of anti-enforcement injunctions remains at
its nascent stage in India and is anticipated to develop with the passage of
time and with additional jurisprudence being created as such orders are taken up
in appeal all the way up to the Supreme Court of India.
The Delhi HC didn't
delve into the enforceability of the Anti-Suit Injunction Order in India. India
and China don't have reciprocal arrangements on enforcement of court orders
under the Code of Civil Procedure, 1908, therefore, the enforceability of such
orders are often a particularly cumbersome and tedious process.
Generally, complex cross border transactions involve an array of issues which
are individually governed by a distinct set of dynamics, such as, competence of
the fora, arbitrability of the disputes, enforceability of awards and/or decrees
etc. Such composite transactions usually tend to involve similar issues between
the same parties to be adjudicated by different fora or perhaps in numerous
resolution mechanisms. The problem of overlap is a reality and can't be
- The law of anti-suit injunctions in India - Litigation Committee
- Judgement propounded in (2003) 4 SCC 341
- (2007) 35 PTC 177 (Del).
- The law of anti-suit injunctions in India - Litigation Committee
- I.A. 8772/2020 in CS(COMM) 295/2020
- Devi Resources Ltd v. Ambo Exports Ltd., 2019 SCC OnLine Cal 7774, SAS
Institute v. World Programming Ltd, (2020) EWCA Civ 599; IPCom GmbH & Co KG v.
Lenovo Technology (United Kingdom) Ltd; Lenovo (US) Inc. v. IPCom GmbH & Co KG,
RG 19/21426-No Portalis 35L7-V-B7D-CBAZK; Huawei v. Conversant,  EWCA Civ.
- 38; Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd, 2020]
UKSC 37; Ecobank Transnational Inc v. Tanoh, (2016) 1 WLR 2231