In order to understand what an anti-anti-suit injunction is, it is necessary that we first discuss about anti-suit injunctions. An anti-suit injunction is an application by a party to stop the opposite party from initiating or continuing proceedings in another court. An anti-anti-suit injunction, is an application in a suit filed against such anti-suit injunction. Sounds confusing, right? Let me explain it with an example.
The Anti-anti-suit injunction is like a shield against Captain America’s shield. Captain America uses his shield for defence, but it acts as a weapon when he throws it. For example, there is a legal dispute between X and Y. Y applies to the Court for passing an anti-suit injunction. This injunction is like Captain America’s shield, which protects Y’s interests, and it is also a weapon in the sense that it stops X from proceeding in an injunction application against him. Now, an ‘anti-anti’ suit injunction is a shield used by X that protects him from the anti-suit injunction filed by Y, and through which he requests the Court to refuse the anti-suit injunction.
Recently, technology companies belonging to the Avanci pool, some of which are Nokia, Sharp and Huawei, have initiated several patent infringement proceedings against Daimler and its technology partners. The concept of anti-anti-suit injunction found its place in the 2019 lawsuit between Nokia and Daimler, to which Continental was also a party.
About the dispute
Nokia’s dispute with Daimler was regarding Standard Essential Patents (SEPs) relating to communication standards. This suit was joined in by Continental, one of the technology partners of Daimler. Continental initiated proceedings against Nokia in the US on the grounds of violation of FRAND obligation. It moved the US District Court at California with an anti-suit injunction, hoping to protect itself from Nokia proceeding in patent infringement suits in Germany. Although anti-suit injunctions are not uncommon in the US, foreign courts have generally considered it to be a controversial practice. It has, however worked in the cases of TCL in 2018 and Microsoft in 2012. TCL obtained an anti-suit injunction from a court in California, prohibiting Ericsson from proceeding in patent infringement suits in France, the UK, Germany, Russia and South America. Microsoft also obtained an anti-suit injunction, which blocked Motorola from enforcing a ruling in its favour from Mannheim Regional Court in a patent infringement suit. This time, it was not well received by the German Courts. In response to Continental, Nokia preferred an anti-anti-suit injunction, which was passed by the Munich Court.
German Court’s opinion
Many of you might be wondering at this stage, how a Court situated in the US can affect the proceedings before a German Court. The answer to it is not in black and white. Technically, the German Court would be unaffected by the order of a US Court. However, Nokia would have been held in contempt of the US Court for not following its orders. Thus, Nokia had to evaluate the situation before it could ignore that order.
The Higher Regional Court at Munich, in its judgement dated 12 December 2019, discussed in length the validity of anti-suit injunction passed by the California Court and its effects on the proceedings before the German Court. It also discussed the reasons why it granted an injunction against the anti-suit injunction filed by Continental in the US.
The Court observed that there was no dispute regarding the international jurisdiction of the German Court, since the Respondent was domiciled in Germany. It held that the rights of the Appellant (Nokia) over its patents had precedence over the right to freedom of use that the respondents possessed. In order for the appellant to successfully protect its patents, it was necessary that it would be allowed to bring forth its case. Moreover, the Court held that the subject matter of the disputes was different, and thus the appellant cannot be restricted from proceeding in the suit. On one hand where Continental had filed a suit for FRAND obligation violation, Nokia was contesting a suit for patent infringement.
Scenario in India
The Delhi High Court passed an order in October ’20 in the Interdigital case which restrained the respondent, Xiaomi, from enforcing anti-suit injunction granted by a court in Wuhan, China. This case is very similar in nature to the Nokia and Continental dispute that we discussed above. Interdigital moved the Delhi HC on grounds of patent (SEP) infringement, and in response, Xiaomi approached a court in Wuhan that passed an injunction restraining Interdigital from proceeding in the suit at Delhi. Interdigital moved an application in the Delhi HC, requesting the Court to restrain Xiaomi from enforcing the anti-suit injunction it had got from the court in Wuhan. Essentially, the Delhi High Court passed an anti-anti-suit injunction.
The Delhi High Court opined that:
“If the anti-suit injunction order, passed by the foreign Court, results in the unfair deprivation of the right, of the plaintiff in this country, to prosecute its suit, which is maintainable as per the laws of this country, and cannot be prosecuted before any other forum, it is the bounden duty of the court, in this country, to protect the plaintiff from the damaging effects of such an injunction”
The Court, with this decision has made it clear that no foreign court shall be allowed to operate against the sovereignty of India and its courts. The Courts in India are competent to adjudicate on the matter. It opined that the respondent cannot be allowed to hinder the proceedings before an Indian court by filing a suit in a convenient jurisdiction, which the respondent knows will grant a decree in its favour.
Anti-suit injunctions have come to the rescue of many, but due to their extra-territorial operations, some jurisdictions have not appreciated them. They have opined that an anti-suit injunction filed in a foreign court interferes the process of justice in the proceedings before them. It is against the sovereignty of that Court and it undermines their power and capability of adjudicating in the matter.
Anti-anti-suit injunctions are as bad in law as anti-suit injunctions are. But as the saying goes, “Diamond cuts diamond”, anti-anti-suit injunctions operate against the injustice and act as an instrument that balances the scenario and ensures status quo till the matter is adjudicated upon in toto.
 Leon Dijkman, Nokia v. Daimler: (anti-)anti suit injunctions and the Brussels I regime in global FRAND litigation, The IPKat, (August 05 2019), accessed at: https://ipkitten.blogspot.com/2019/08/nokia-v-daimler-anti-anti-suit.html
 Konstanze Richter, Munich Higher Regional Court confirms Nokia’s anti-anti-suit injunction against Continental, Juve Patent (December 12, 2019), accessed at: lhttps://www.juve-patent.com/news-and-stories/cases/nokias-anti-anti-suit-injunction-against-continental-confirmed/
 Konstanze Richter, US anti-suit injunction found incompatible with German law for first time, Juve Patent (July 30, 2019), accessed at: https://www.juve-patent.com/news-and-stories/cases/us-anti-suit-injunction-incompatible-with-german-law/
 Nokia v. Continental, Case ID: 6 U 5042/19, accessed at: http://eplaw.org/wp-content/uploads/2019/12/DE-AASI-HRC-Munich-6-U-5042-19-EN.pdf
 Interdigital Technology Corpn. v. Xiaomi Corpn., 2020 SCC OnLine Del 1633, decided on 16-12-2020
 LiveLaw News Network, Delhi HC Restrains Xiaomi From Enforcing Wuhan Court’s Anti Suit Injunction Order Against Interdigital Technology Corporation [Read Order], LiveLaw.in (October 10, 2020), accessed at: https://www.livelaw.in/news-updates/delhi-hc-restrains-xiaomi-from-enforcing-anti-suit-injunction-order-passed-by-wuhan-court-164234?infinitescroll=1