This article is written by Anjali Sharma, LLB 3rd Year, Lloyd School of Law during her Internship at LeDroit India.
Introduction
Litigation can feel at times like a battlefield, and strategic forum shopping is the sword some lawyers wield to slay their legal foes… by choosing the most “friendly” court. Far from a dull procedural trick, this practice raises urgent questions of justice, fairness, and legal ethics. At its negative extreme, forum‑shopping becomes a tool of oppression; but at its softer edge, it can be a means of securing justice when other courts fail. When tangled with anti‑suit injunctions the remedy used to stop someone suing in a less‑favored place the emotional stakes rise: judges grapple with power vs. comity, and lawyers wonder if seeking advantage is advocacy or abuse.
This article explains both tools simply, presents landmark case‑laws like Société Nationale Industrielle Aérospatiale and Airbus v. Patel, BALCO in India, and West Tankers, then discusses the ethical landscape. Along the way you’ll see how law and the people behind ithum with tension between strategic zeal and principled restraint.
What Is Forum Shopping and Why Does It Matter?
Forum shopping means choosing a court believed to favor your side, even if that court has minimal connection to the dispute (like filing in Texas because of a certain judge’s record). It may be a harmless strategy or an unfair advantage.
Simple Definition
Forum shopping is the practice of selecting a legal forum because it is favorable, not because it is logically or geographically tied to the dispute.
There are two types:
Domestic: choosing between courts within the same country, e.g. suing in one state or province over another.
International: choosing one country’s court over another’s, often with little substance-level link.
Why It Matters: Justice or Abuse?
Fairness to defendants: unfamiliar jurisdictions can mean extra travel, unfamiliar rules, even procedural bias.
Judicial esthetics: courts don’t want to be loaded with disputes that should properly be heard elsewhere. Unchecked forum shopping bogs down systems.
Public confidence: people lose faith if they view litigation as a game of “find the friendliest judge.”
E.g., the UK’s House of Lords called it “unprincipled” and “undeserved” advantage‑seeking. The Indian Supreme Court described it as disreputable, without legal sanction, and needing to be “crushed with a heavy hand.”
The Doctrine of Forum Non Conveniens
To combat misuse: forum non conveniens allows a court to decline jurisdiction if another more suitable court exists, even if jurisdiction technically exists. So if the case really belongs elsewhere, the forum can dismiss it on that basis.
What is Anti‑Suit Injunctions?
Once a dispute spans more than one forum (especially internationally), one party may seek a court order preventing the other from pursuing litigation in a foreign court. That order is called an anti‑suit injunction it acts in personam, telling the party not to sue abroad.
Common-Law Origins
In English law, the Privy Council in Aérospatiale v. Lee Kui Jak (1987) allowed injunctions when foreign litigation was **vexatious, oppressive, or in breach of agreement.
Airbus Industrie GIE v. Patel (UK, 1998)
Facts: Injured air‑crash victims based in India sued Airbus in Texas. Airbus asked English courts to block the Texas suit via anti‑suit injunction.
House of Lords outcome: refused. The plaintiffs had no sufficient connection to England apart from residing there; letting English courts block Texas litigation violated “comity” mutual respect between sovereign courts.
*Emotional core: Airbus argued it was oppressed; Lords said the remedy cannot turn English courts into global gatekeepers.
Grounds for granting anti‑suit inj in England
1. A clear breach of an arbitration‑jurisdiction clause or exclusive forum clause.
2. A genuine risk of oppression or injustice if foreign suit proceeds.
3. Venue/delay tactics designed to hijack fairness. If none of these exist, injunctions must be refused.
Forums & Anti‑Suit Injunctions in India
India’s law has evolved rapidly since the 1990s, particularly around arbitration and enforcement.
Intermodal Cases: Interdi‑digital v. Xiaomi (Delhi HC, 2021)
• Scenario: Singapore court issued an anti‑suit injunction against an Indian party preventing them from filing before India’s National Company Law Tribunal (NCLT).
• Delhi HC’s answer: Indian courts allowed an anti‑enforcement injunction a declaratory relief stopping enforcement of the foreign injunction within India — because the NCLT was the *only non-arbitrable forum* for oppression/mismanagement claims and enforcing foreign order would violate public policy.
• Framework: Delhi HC applied a three-pronged test serious prima facie case, irreparable harm, and balance of convenience and held that comity cannot override access to justice when Indian law reserves certain disputes for Indian forums.
Bharat Aluminium Co. v. Kaiser Aluminium (“BALCO”, 2012)
BALCO isn’t an anti-suit injunction case but changes the arbitration landscape:
The Supreme Court held that Part I of India’s Arbitration Act (including S 9 and S 34) applies only if the seat is in India overruling earlier Bhatia decisions that allowed Part I to apply to foreign-seated arbitrations
Impact: Indian courts cannot grant interim relief (like freezing assets) or set aside foreign arbitral awards unless the seat is India. Instead they must turn to Part II(recognition/enforcement). That clarifies that anti‑suit or anti‑enforcement orders can only come when India remains the seat, or enforcement state.
Anti‑Anti‑Suit Injunctions in India
Indian courts now recognize the concept: a party prevented by a foreign anti‑suit injunction may seek an anti‑anti‑suit injunction (i.e. an Indian court order to override the foreign injunction within India) if enforcement would prevent them from vindicating legal rights.
Case Laws & Headline Principles
Société Nationale Aérospatiale v. Lee Kui Jak (Privy Council, 1987)
Established anti‑suit injunctions can be granted if foreign proceedings are oppressive or breach an arbitration agreement.
Airbus Industrie v. Patel* (House of Lords, 1998)
English courts refused to block a Texas claim by Indian plaintiffs, because **no strong connection** to England and principle of comity prevented it. Led to tightening the threshold for English anti‑suit orders. ([casemine.com][9], [casemine.com][10])
West Tankers Inc. v. European Reinsurers (EU-UK, 2009)
The European Court held that English anti‑suit injunctions violated the EU Brussels I Regulation if issued in intra-EU disputes. EU courts may not override jurisdiction designated by regulation. (This restrains strategic forum‑shopping in the EU.)
Interdigital Tech v. Xiaomi (Delhi HC, 2021)
Anti-enforcement injunction allowed because Indian section 66 jurisdiction is exclusive and necessary to avoid palm‑greasing of foreign forum orders blocking legal remedy. Comity was deprioritized in face of potential palpable injustice.
Bharat Aluminium Co. v. Kaiser (BALCO) (SC India, 2012)
Only Indian-seated arbitrations fall under Part I — no intervention in foreign‑seated arbitration allowed. That circumscribes Indian anti‑suit powers to domestic or enforcement cases only. ([psalegal.com][18])
Ethical Landscape: Is Strategic Forum Shopping Legit?
Practical Advantage vs. Moral Hazard
As scholar Aaron Simowitz put it: lawyers have a duty to advise clients on the most favorable forums under the ethical principles of zeal, diligence, and competence but must avoid filing frivolous or abusive actions across jurisdictions. Forum‑shopping is common, but without care it can become abuse.
The Criticism: Forum Shopping as “Abuse of Process”
House of Lords: described it as usurping justice, unfair to defendants, and inefficient.
Delhi HC: labelled forum-shopping abuse of legal process when plaintiffs file multiple petitions across forums over same cause.
Karnataka HC: treated repeated writ petitions as criminal contempt, finding them deliberate exploitation of courts.
When Is Forum Shopping Acceptable — Even Ethical?
If no other forum is able to provide legal redress, and the chosen court has legitimate jurisdiction — e.g. because the defendant resides there, or the cause of action arose there.
If the dispute is non-arbitrable elsewhere, and an anti‑suit would deny access to justice.
If contracts contain choice-of-forum clauses, such clauses may be reasonable expressions of party autonomy (though abusive clauses can still be set aside for being unconscionable).
Emotional Highs and Lows
Violations of fairness can feel deeply emotional:
Defendants sometimes cry, “I never had a chance” before a foreign tribunal afar.
Claimants especially those with unequal resources—say, “This forum is my only way to get heard.”
Judges wrestle with the responsibility: if they deny an injunction, the losing party may end up with no protection; if they grant one, they may be interfering in foreign sovereignty.
A judge in Airbus said: “Comity might be the only thing keeping the world from legal chaos.” Another asked: “But what of justice? If I let a foreign order strip someone of remedy, am I still adjudicating or am I silencing them?”
Lawyers argue: Is it better to compete inside the rules — even if rules vary by place — or is choosing the rules themselves unethical?
Key Ethical Principles
1. Duty of Competence and Zeal: Lawyers should advocate zealously within bounds, applying law expertise, including advising about forum selection.
2. Norm against Frivolity: Courts may sanction multi-forum filings without justification.
3. Principle of Comity: There’s an ethical—even emotional—need to respect foreign forum if it is legitimate.
4. Public Interest: Forum‑shopping that crowd-thwarts judicial resources incurs social costs and should be avoided.
Conclusion: Justice Beyond Borders
Strategic forum shopping and anti‑suit injunctions are not black‑and‑white tools: they carry power to bring justice or poison it. The highest courts and legal thinkers remind us: law is about more than winning; it’s about fair play, access to remedy, and mutual respect across legal borders.
As Airbus judges warned, “Justice must not become the privilege of the rich who can afflict the weaker by lawsuit geography.” As the Delhi High Court said, “Access to justice must not be shackled by foreign technicalities if no other path remains.” And our Indian community still wrestles with ethics as deeply as Europe and the U.S.
So, take these lessons to heart:
• Know the law, but weigh the human stakes.
• Use every tool but do not let strategy become subterfuge.
• When you select a forum, ask not just “Is the law favorable?”, but also “Is justice present?”
• Above all: law is at its best when it is both smart and humble.
May we conduct every dispute in India or abroad with sharp minds and tender souls.
