Non-Signatories, Unfair Competition and the Reach of Anti-Suit Injunctions

Can you sidestep an arbitration clause by suing your counterparty’s affiliates?

A recent decision of the Hong Kong Court of First Instance suggests that this is a risky strategy.

In [2026] HKCFI 5453, Mimmie Chan J granted anti-suit injunctions restraining a party from pursuing proceedings in Mainland China arising out of a joint venture relationship governed by Hong Kong arbitration clauses.

The claims were framed as a shareholder derivative action and unfair competition claims. They targeted not only the contractual counterparty, but also companies within its corporate group. The defendant argued, among other things, that those claims were non-arbitrable and that the affiliates had never agreed to arbitrate.

The Court accepted that the affiliates were not parties to the arbitration agreements. But that did not end the matter. The substance of the claims concerned the exclusive supply arrangements contemplated by the joint venture agreements. In the Court’s view, the claims fell prima facie within the broad scope of the arbitration clauses. Their statutory or non-contractual character did not, by itself, take them outside the parties’ bargain.

The Court also found that the proceedings against the affiliates were an attempt to circumvent that bargain and amounted to an abuse of process.

There is a second point worth noting. In deciding whether to grant the injunction, the Court applied a prima facie test to the existence and scope of the arbitration agreement, emphasising the tribunal’s primary role in determining its own jurisdiction.

The decision is a useful reminder that the way a claim is pleaded, and the parties against whom it is brought, may not determine whether it can escape an arbitration clause. The contractual context and the substance of the dispute still matter.

It is equally important not to overread the judgment: the Court did not simply extend the arbitration agreements to every affiliate. It restrained proceedings in circumstances where the contractual bargain and the alleged procedural manoeuvre justified judicial intervention.

For those drafting joint venture agreements, the practical question is whether the dispute resolution clause is robust enough to withstand litigation strategies involving related entities and statutory causes of action.

How far should courts go in protecting an arbitration agreement when the proceedings are brought against non-signatories?