Lydia Sharpe Discusses Anti-Suit Injunctions – Are We Seeing A Renaissance?

2025 AMINZ Determinative Scholar, Lydia Sharpe, was recently published in the New Zealand Law Journal with her article on anti-suit injunctions (ASIs). Here, she shares an overview of her key findings.   

Like New Zealand, Britain is an island nation that relies heavily on cross-border trade. Unlike New Zealand, ASIs are commonly issued by the courts of England and Wales and are a common and useful tool in cross-border litigation. But this may be changing: in the last five years three applications for ASIs have been made in New Zealand, although only one has been successful.  

What is an ASI? 

An ASI is a form of equitable interlocutory injunction which restrains a defendant from pursuing proceedings overseas that are vexatious or oppressive. Contractual ASIs are used to ensure that proceedings are commenced in accordance with the parties’ contractual bargain, whether that is an arbitration agreement, exclusive jurisdiction clause, or other dispute resolution provision.  

Where Party A has commenced proceedings in a jurisdiction other than that agreed in the contract, Party B may apply for an ASI (a) to restrain Party A from continuing its proceedings and (b) to require Party A to comply with the contractual dispute resolution mechanism.  

Why ASIs can be controversial 

ASIs can be controversial because an application for an ASI requires asking the courts of one jurisdiction to stay a proceeding in favour of commencing proceedings in the contractually-specified jurisdiction. This can create a perception that ASIs interfere with judicial comity (that is, the respect and deference owed by courts in one jurisdiction to the workings of courts in another jurisdiction).  

 However, this article argues that the potential negative effect of ASIs on judicial comity is not as significant as commonly perceived and – particularly where ASIs are sought to uphold contractual dispute resolution provisions – ASIs can be used to uphold the equally fundamental principle of party autonomy.   

Reviewing two New Zealand applications 

The article reviews the traditional English jurisprudence which applies to ASIs. The article also reviews two New Zealand applications: (Maritime Mutual Insurance Association (NZ) Limited v Silica Sandport Inc and Sri Commodities Import and Export Inc [2023] NZHC 793 (Maritime Mutual)), and A-Ward Limited v Raw Metal Corp Pty Limited [2024] NZHC 736 (A-Ward).  

Maritime Mutual involved the capsize of a barge off the coast of Trinidad, as a result of which the owner and operator brought proceedings in Guyana, its home jurisdiction, against the New Zealand-registered P&I club. This case is the only successful application for an ASI in New Zealand to date and confirms that New Zealand jurisprudence on ASIs follows previous English jurisprudence. 

A-Ward involved a contract for sale of goods between Australia and New Zealand, which included an exclusive jurisdiction clause specifying New Zealand law. Following a dispute, the Australian party filed proceedings in Queensland, in response to which the New Zealand party sought an ASI in New Zealand.   

The Trans-Tasman Proceedings Acts 2010 of both New Zealand and the Australian Commonwealth provide that the courts of one jurisdiction (e.g. New Zealand) must not restrain a person from commencing a civil proceeding in the courts of the other jurisdiction (e.g. Australia) on the grounds that that court is not the appropriate forum for the proceeding. This case indicates that ASIs are non-applicable where states have agreed on judicial cooperation in assuming and exercising jurisdiction.  

While the decision in A-Ward suggests the New Zealand courts may prefer not to widen unduly the scope of scenarios in which an ASI may be granted, Maritime Mutual confirms that there are contexts in which they are appropriate and may be considered as an appropriate option.   

Ultimately, given the importance of cross-border commerce to the New Zealand economy, and our jurisdiction’s pro-arbitration standpoint, there is public policy benefit in continuing to develop a body of jurisprudence on ASIs from a New Zealand perspective.    

Further reading 

Read Lydia’s full article on LexisNexis (a subscription is required).

Lydia Sharpe is a senior solicitor in the construction disputes team at MinterEllisonRuddWatts. She has a long-standing interest in cross-border arbitration, informed by both her current work, where she advises on the application of arbitration agreements, and her experience in trade and transport law.