Anti-Suit Injunctions In British Airways Ltd

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The mechanical importation of the criteria of ‘forum non conveniens’ to anti-suit injunctions was criticized on the ground that while the atonement of criteria in respect of stay of proceedings meant greater submission towards international comity, when the same criteria were applied in reverse for the granting of anti-suit injunctions it resulted in an unnecessary and unjustified interference with the foreign proceedings. Nevertheless, the reasoning adopted in Castahno was adopted in subsequent cases, including Smith Kline & French Laboratories Ltd vs Bloch , British Airways Board v Laker Airways Ltd and South Carolina Insurance Co v Assurantie Maatschappij.
The reasoning of Castahno was, subsequently, ‘officially’ shot down in Aerospatiale
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Since this was a ‘single forum’ case, which could only be litigated abroad, it was evident that the criteria set in Castahno were inapplicable. Consequently, Lord Diplock utilised the test of ‘unconscionability’ or ‘unconscionable conduct ‘. In accordance with this criterion, an anti-suit injunction could be granted not only when there was a legal or equitable right not to be sued abroad, but also where there was a substantive equitable defence which justifies the retraining of foreign proceedings. Lord Diplock’s reliance on the obsolete notion of substantive equity was not supported in subsequent cases. However, the concept of unconscionable conduct as a test for the grant of an injunction was used in Midland Bank Plc v Laker Airways Ltd and South Carolina insurance Co v Assurantie Maatschappij . However, it was eventually felt that this test was unsatisfactory in guiding the court to identify the level of misconduct required and consequently fell into …show more content…
However, this synthesis of the two tests was not supported unanimously. ln Royal Bank of Canada v Cooperative Centrale Raiffeisen- Boerenleenbank BA , for example, Evans- Lombe J supported this synthesis while Mance LJ appeared to prefer the test laid down by Lord Goff in Aerospatiale. Similarly, in OT Africa Line Ltd v Magic Sportswear , Longmore LJ preferred Lord Goff’s approach whilst Rix LJ showed support to the synthetic approach. Judging from more recent case-law, it seems that Lord Goff’s approach turned out to be the preferred

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