Anti-suit Injunctions for Dutch Courts

In common law countries, an anti-suit injunction is a common type of injunction. It enables a party to ask the court to grant an injunction restraining another party from pursuing proceedings in a foreign jurisdiction. However, in civil law countries, this concept is hardly known.

On April 27 2004, in Turner v Grovit (C-159/02), the European Court of Justice (ECJ) ruled on an anti-suit injunction granted by an English court which prevented a party from pursuing litigation before the Spanish courts. The ECJ ruled that this was not allowed under the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as an injunction that prevents commencing or continuing proceedings in another state interferes with the jurisdiction of the courts of the latter state, which is incompatible with the convention.¹ This is the case even where the issuing court's injunction was intended to prevent an abuse of process by the defendant in a foreign jurisdiction (as in Turner v Grovit). As a result of this judgment, (common law) parties to the convention must find alternative ways to keep their opposing parties from becoming claimants in a foreign courthouse.

In the Netherlands, courts may be willing to grant a helping hand to achieve this objective. In Medinol v Cordis (August 5 2004) at the District Court of The Hague, legal history was made when for the first time a Dutch court awarded a preliminary relief judgment prohibiting a party from commencing new preliminary relief proceedings in the Netherlands.

The case has a long history and is quite complex. Medinol (incorporated in Israel) considered itself to be the proprietor of a parent patent and a number of derived patents involving 'stents' (ie, splints used to prop open clogged arteries). Medinol commenced a number of legal proceedings against Cordis (incorporated in the Netherlands), which it claimed had infringed its patents.

During this period, the appeal section of the European Patent Office ruled that the parent patent was invalid. This prompted new proceedings on the merits of Medinol's arguments against Cordis based on the derived patents, as well as new preliminary relief proceedings. As the derived patents depended on the parent patent, it seemed likely that the derived patents would also be deemed invalid. Against this background, any commencement by Medinol of legal proceedings against Cordis (thereby inflicting heavy legal costs on this company) could be regarded as an abuse of process. However, unless restrained, Medinol would be likely to commence new preliminary relief proceedings.

On the basis of these considerations, the court imposed an order on Medinol prohibiting it from commencing new preliminary relief proceedings until the legal validity of the derived patents had been determined, under a penalty payment of €5 million per procedure.

Medinol argued that Cordis's counterclaim qualified as an anti-suit injunction and should be dismissed as these injunctions are not recognized under Dutch law. The president of the District Court of The Hague did not discuss the qualification of the injunction. The president justified its decision by stating that there are no statutory provisions under Dutch law which prohibit a party from requesting an injunction to prevent another party from commencing new preliminary relief proceedings, in the event that commencing such proceedings would constitute abuse of process (Article 3(13) of the Dutch Civil Code).

The judgment of the president of the District Court of The Hague would most likely not qualify as an anti-suit injunction, as it does not restrain Medinol from pursuing proceedings in a foreign jurisdiction. Under the common law definition of an 'anti-suit injunction', the cross-border element is essential in order for an injunction to qualify as an anti-suit injunction. However, Medinol v Cordis offers a possibility for (common and civil law) parties to prevent the other party from commencing new proceedings before a Dutch court.

Applying the judgment to the facts of Turner v Grovit (thereby replacing Spain with the Netherlands), it is likely that a Dutch court would prohibit Grovit from commencing a new procedure in the Netherlands if the only reason behind such procedure were to frustrate or obstruct a foreign procedure.

Before Turner v Grovit, (common law) parties to the convention were able to request their own courts to grant an injunction restraining the other party from pursuing proceedings in a foreign jurisdiction. This is no longer a possibility. However, a similar result might be achieved by requesting the injunction directly from the court in the foreign jurisdiction.

For now, it seems safe to say that parties are more than welcome in The Hague.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.