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Published online by Cambridge University Press: 27 February 2017
In the April 1997 issue of the Journal, I reported on three cases in which the response to an action brought in the court of one country led not to an answer, but to a countersuit in another country—for an antisuit injunction, a declaration of nonliability or both. One of the cases I discussed arose out of a controversy between an asbestos manufacturer, CSR, and a group of insurance companies, the Cigna Group, that may or may not have been obligated to defend and indemnify the manufacturer in respect of claims in the United States for product liability. The manufacturer brought suit in federal court in New Jersey, raising both contract and antitrust claims. The insurers, as I reported, succeeded in securing an antisuit injunction in the Supreme Court of New South Wales (a court of first instance), and thereafter in defeating a motion by the manufacturer to stay or dismiss, on grounds of forum non conveniens, the insurers’ action seeking a declaration of nonliability. I thought that outcome was wrong: in my view, the Australian court should not have stepped into the controversy, and the insurers should have brought their challenge to the jurisdiction and suitable venue of the New Jersey court in that court.
1 Andreas, F. Lowenfeld, Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litigation , 91 AJIL 314 (1997)Google Scholar.
2 Cigna Ins. Austl. v. CSR Ltd, Case No. 50133/95 (Aug. 15, 1995).
3 CSR Ltd v. Cigna Ins. Austl. Ltd, Nos. S119 and S120, 1996 (High Ct. Aug. 5, 1997) [hereafter Slip op.]. 4 The Court of Appeal of New South Wales denied leave to appeal from the decisions of Rolfe, J., in the Supreme Court, and the manufacturers thereupon applied for and were granted special leave to appeal to the High Court of Australia. Though technically only the refusal of the NSW Court of Appeal to grant leave to appeal was before the High Court, once the case was there the Court resolved to take up the underlying issues. The Court wrote:
The proper approach to the resolution of jurisdictional conflict between Australian and foreign courts is a matter of considerable importance. Moreover, . . . the potential for jurisdictional conflict has increased significantly in recent years. Given these considerations . . . , it is appropriate that the various questions of law raised in these appeals be fully considered whether or not they were raised before Rolfe J.
Id. at 38.
5 Id. at 41.
6 Id. at 47.
7 Compare Amchem Prods, v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R. 897, [1993] 102 D.L.R. (4th) 96.
8 That seems to be consistent with the reasoning of the House of Lords in British Airways Board v. Laker Airways Ltd, [1984] 3 W.L.R. 413, 1985 App. Cas. 58, which reversed the injunction issued by an English court against a Sherman Act proceeding in the United States, essentially because the injunction would have meant determining the outcome of a controversy that no court had heard on the merits.
9 See, in particular, Voth v. Manildra Flour Mills Pty Ltd, (1990) 97 A.L.R. 124, (1990) 171 C.L.R. 538.
10 Slip op. at 54.
11 Lowenfeld, note 1 supra, at 321–24.
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