Foreign Antisuit Injunctions and the Settlement Effect

Connor Cohen | April 17, 2022

International parallel proceedings, which are concurrent identical or similar lawsuits in multiple countries, often ask courts to balance efficiency and fairness against the speculative fear of insulting foreign nations. Some litigants abuse foreign duplicative litigation to exhaust their opponents’ resources and pressure them into settling out of court. This Note provides the first empirical evidence of such abuse of international parallel proceedings: when courts deny motions to enjoin foreign parallel litigation, the settlement rate rises significantly. Considering the results of this empirical project and its limitations, I encourage future studies on international parallel proceedings and settlement. I also argue for the resolution of a longstanding circuit split on the legal standard applicable to foreign antisuit injunctions in favor of the permissive approach. Rather than presuming that insult and retaliation follow every injunction, the permissive approach is responsive to evidence of unfair settlement pressure, and it promotes efficiency with due regard for actual foreign-relations concerns.