On 31st March 2025, a California U.S. District Court in Google v. Tsargrad[1]enjoined NAO Tsargrad Media (“Tsargrad” in short hereinafter) from seeking to recognize and enforce globally its Russian judgment, which ordered Google to pay more than twenty decillion dollars. The author morally supports this outcome. Yet logically, the author finds its reasoning unreasonable and distorted, and even arbitrary. Such problematic outcomes could have been avoided had there been a specific contractual clause, as discussed below, which would have enhanced business predictability and facilitated more straightforward dispute resolution.
I. The Grounds for Anti-Enforcement Injunction
Anti-enforcement injunctions are a special form of anti-suit injunctions, which originated in English law.[2] One of the grounds for such injunctions, consolidated and thereby acknowledged in a landmark case, Ellerman v. Read,[3] was when the foreign judgment was obtained based on a breach of contract. The California U.S. District Court at issue, as a common law system, also shares this ground. In Tsargrad, Google asserted that Tsargrad breached Google Terms’ forum selection clause that designated state and federal courts in Santa Clara County, California, as exclusive forums. Tsargrad, in turn, contended that it could also sue Google in Russia and pointed to Russian law (Article 248.1 of the Arbitrazh Procedural Code) which makes any forum selection clause designating a non-Russian forum unenforceable. The Court took Google’s position and held that there was a breach of a forum selection clause.[4]
II. Issue One: Breach of Forum Selection Clause
A. The Concept of Comity
Under the concept of comity, it should not be assumed that Tsargrad breached the forum selection clause. Comity is more than what the Court in Tsargrad described as a mere “spirit.”[5] It is a legal principle of reciprocity and cooperation, allowing other States’ acts of sovereignty within their own territory. In modern times, it has evolved beyond the concept of political coordination between States into a legal principle that takes into account the interests of international commerce based on internationalism.[6] Since the essence of comity roots in sovereign coordination, respect for other countries should extend not only to the judicial power but also to the legislative power.[7] This rule is called the “prescriptive comity as a principle of restraint” (shortened as “the principle of restraint” hereinafter).[8]
The aforementioned Russian law provides the basis for making exclusive jurisdiction agreements in favor of foreign courts unenforceable. Thus, the Russian law, which is obviously the manifestation of Russia’s sovereignty, was the basis for Tsargrad to file a lawsuit in Russia. In this sense, the lawsuit was not inadmissible. Accordingly, Tsargrad filing a lawsuit in Russia based on Russian law and the Russian law making non-Russian forum selection clauses unenforceable are two different matters. Japan has a similar legislation. As a manifestation of sovereignty, Article 3-7(4) of its Civil Procedure Code makes an exclusive forum selection clause un-invokable provided that the designated court cannot be expected to offer fair trial, due to corruption for example.[9] Japanese courts in theory could ignore an exclusive forum selection clause designating California saying U.S. courts cannot offer fair trial due to the unpredictable jury system—although it would never be likely to hold so in practice. Because the validity of the exclusive forum selection clause itself is contested, the jurisdiction over this issue should not be restricted to the designated forum of the same clause.
It is also true in U.S. case law that a lawsuit outside the designated forum is not ipso facto inadmissible since a forum selection clause is only respected so long as the clause is enforceable.[10] In such cases, the court determines the enforceability of the clause only after it has completed all its inquiries;[11] allowing the lawsuit to remain admissible during such inquiries. The Russian law in this case was exactly the same. The only difference was that the Russian court found the clause unenforceable, allowing the Russian lawsuit to proceed to the merits.
B. Whether the Forum Selection Clause Was Breached
Given the fact that comity is a reciprocal principle, the Court was indeed correct to state Tsargrad could still be held in violation of the forum selection clause under California law. However, what was noteworthy in this case was that the Russian judgment has already acquired res judicata within the Russian jurisdiction.It appears that such res judicata would nullify the jurisdiction agreement since res judicata may invoke issue preclusion under California law.[12] The Court evaded this by not recognizing the Russian judgment. The main reason was that Tsargrad breached the forum selection clause with failure to fall within the perimeter of its exception clause (“[A]pplicable local law prevents certain disputes from being resolved in a California court.”). Since the Russian law did not go so far as to deprive California of its jurisdiction, Tsargrad failed to fall within the scope of exception.[13]
Ever since the U.S. Supreme Court held in Bremen v. Zapata that a forum selection clause would be denied of its enforceability “if [its] enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision,”[14] parties have come to introduce a drafting custom to insert this kind of exception clause. Its aim was to avoid conflicts with non-derogable jurisdictions (i.e., exclusive federal jurisdictions,[15] protective state jurisdictions,[16] and exclusive subject matter jurisdictions[17]). Google Terms, which included the forum selection clause at issue, was meant for universal/global use. Therefore, its exception clause must be read under this custom to respect non-derogable jurisdictions in other States. The exclusive forum selection clause at issue is not superseded by the Russian law, which, once again, only denied the enforcement of the clause but did not deprive any other State of its jurisdiction. Therefore, the Court was at least correct to conclude that filing a lawsuit in Russia was incompatible with the exclusive forum selection clause at issue.
Relating to this, the Californian common law and its enforcement act provide grounds for nonrecognition of foreign monetary judgments. Among which is when the forum of which the judgment was rendered differs from the forum selected in the clause.[18] In contrast, the Court rejected recognition of the Russian judgment based on “breach of forum selection clause” and public policy.[19] However, the Court need not have gone so far as to say it was a “breach” since it was sufficient under the California law to only ascertain the fact that the actual forum differed from where the designated forum was (as mentioned above, the Court was at least correct to conclude that filing a lawsuit in Russia was incompatible with the exclusive forum selection clause at issue). There was no need, in terms of logical efficiency, for going all the way around so as to conclude that Tsargrad was “breaching” the forum selection clause. Similarly, the Court should not have held that the Russian law violated U.S. public policy in terms of the principle of restraint since such an evaluation is incompatible with the principle of sovereign equality, as it would entail imposition of the legislative values of one State upon another.
C. Reviewing the Grounds for Anti-Enforcement
In any event, the award would have been denied recognition and enforcement. Free from res judicata, the Court could attempt to grant anti-enforcement injunction based on “breach of forum selection clause.” Yet, in the author’s opinion, in such cases where the other contracting party sued an American party while legally complying with foreign laws, a court should not be entitled to grant an anti-enforcement injunction based on this ground in light of the principle of restraint. An anti-enforcement injunction based on this ground could only be justified when the other party ignored the clause without any justification of foreign law.[20]
III. Issue Two: The Genuine Ground for Anti-Enforcement Injunction in This Case
A. The Supposed Reason for the Court Referring to Breach of Forum Selection Clause
Furthermore, there was no reason for the Court to examine whether there was a breach of a forum selection clause in the first place. An injunction is only granted if there was any ongoing or future harm; whereas in this case the harm―the “breach” of the forum selection clause―has already disappeared. In principle, injunction will be denied in such a case.[21] The Court avoided this by coming up with a new ground called “breach of implied anti-enforcement clause,” which was derived from the forum selection clause at issue. This was the reason the Court had to refer to “breach of forum selection clause” despite its irrelevancy as a ground of injunction.
B. Permissibility of an “Implied Anti-Enforcement Clause”
The Court stresses that contracts must be interpreted “to give effect to the mutual intention of the parties at the time the contract is formed.”[22] It goes on to apply the rule of Frankel[23]to justify the permissibility of an “implied anti-enforcement clause.” The basic idea of the Court was that a forum selection clause could not be effective if it could not ultimately prohibit the other contracting party from enforcing such a judgment rendered in a breach of a forum selection clause.
However, as everyday practice proves, a forum selection clause is already in itself effective, without any “anti-enforcement clause.” Moreover, the Court seems to disregard the basic philosophy of Addiego v. Hill,[24] the case which Frankel cites. The Addiego court holds that “[i]t is not enough to say that…the contract would be improvident or unwise or would operate unjustly. Parties have the right to make such agreements. The law refuses to read into contracts anything by way of implication except upon grounds of obvious necessity.”[25] Since it clearly cites Addiego,[26] the Frankel rule is nothing more than a criterion that embodies the requirement of “obvious necessity,” which must be applied in light of Addiego’s philosophy. Otherwise, it would be too easy for a court to abuse its power by formally applying the rule. Although an “implied anti-enforcement clause” seemed to be “obvious necessity” under the Court’s rhetoric; in reality it was not. The Court revised the clause paternalistically simply because the clause inadvertently left a loophole that disadvantaged Google.
Furthermore, if we followed the Court’s logic and were compelled to read “anti-enforcement” into the given forum selection clause, the clause’s language would be uncertain. Under California law, if the language of a contract remains uncertain, the language of the contract “should be interpreted most strongly against the party who caused the uncertainty to exist.”[27] In such a case, its scope must either way be limited to forum selection, excluding anti-enforcement clauses. An “implied anti-enforcement clause” is absolutely impermissible.
IV. Conclusion and Takeaways
Accordingly, in this case, Google lacked its basis for seeking an anti-enforcement injunction. Google was responsible to seek an anti-suit injunction as soon as possible on the ground other than breach of forum selection clause[28] before Tsargrad won the Russian judgment. Nevertheless, the Court came up with a new ground for injunction. The idea was indeed brilliant given that an injunction based on an anti-enforcement clause would not contradict the principle of restraint. Nonetheless, an “implicit anti-enforcement clause” was impermissible under California law. For safety reasons, business entities are encouraged to insert explicit anti-enforcement clauses in their contracts.
Such a clause may allow parties like Google to file a global anti-enforcement injunction even in cases regarding international arbitration, where an enforcement of a judgment procured in breach of an arbitration agreement is sought. However, as duly acknowledged in Tsargrad by the California U.S. District Court, a global anti-enforcement injunction cannot extend so far as to restrain enforcement of the judgment in the rendering State itself, for such interference would contravene the principle of comity.[29] This legal consequence may fall within the scope of the rule of “adjudicative comity as a principle of restraint.”[30] Accordingly, even if their contracts do contain explicit anti-enforcement clauses, business entities should not remain complacent. Action must be taken before the targeted judgment is rendered. It is strongly recommended that they seek global anti-suit injunctions―based on appropriate grounds―before the courts of the agreed forum or the seat as soon as they become aware that the other contracting party has filed a lawsuit in breach of a forum-selection or arbitration clause.[31]
Lastly, when timely seeking anti-suit injunctions, plaintiffs must satisfy a heightened equitable standard compared to that required for global anti-enforcement injunctions.[32] Both injunctions indeed owe a great deal to contract law; but are also dogmatically and practically inextricable with the principle of comity. Therefore, principles of restraint must also be taken into account in equitable considerations. In anti-suit injunctions, the exercise of foreign judicial power is often ongoing,[33] whereas in global anti-enforcement injunctions, such exercise has already concluded, leaving less scope for constraining foreign sovereignty. Especially, in the context of the latter, one should acknowledge (1) that because enforcement remains a form of sovereign restraint, which one may describe as a passive one, States equally have no interest in actively seeking to enforce foreign judgments unless they are brought to their courts; and (2) that such injunctions are directed only against the private party seeking enforcement,[34] not against State sovereignty, thus maintaining the judicial power of the enforcing States formally and functionally intact. Therefore, the impact upon third States is limited, and there is considerable scope for other equitable interests to outweigh the interest in comity.
The Court in Tsargrad was consistent with this distinction in assessing the equitable considerations for the global anti-enforcement injunction.[35] By contrast, with respect to the anti-anti-suit injunction granted as a precautionary measure (see footnote 31),[36] it appeared, at first glance, that the Court failed to apply a heightened standard. However, at least in this case, the precautionary anti-anti-suit injunction was issued at a stage before the Russian court had exercised its judicial power to hear the envisaged anti-suit injunction. It is, therefore, reasonable to interpret the Court’s approach as having applied an exceptionally low threshold in light of these specific circumstances. When considering seeking global anti-enforcement injunctions, business entities must be mindful of these conditions in order to preserve the practical effect of their explicit anti-enforcement clauses.
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Keiyu Higashi recently graduated from the NYU School of Law with an LL.M. in International Business Regulation, Litigation, and Arbitration (IBRLA). He earned his LL.B. from Waseda University School of Law in Japan, and his J.D. from Waseda University Law School, graduating fifth in his class. He is also a Japanese attorney at law.
[1] Google LLC v. NAO Tsargrad Media, No. 5:24-cv-05423-EJD, 2025 U.S. Dist. LEXIS 61637, 2025 WL 964692 (N.D. Cal. Mar. 31, 2025) (This case originates from Google’s termination of Tsargrad’s account in 2020, citing compliance with U.S. sanctions and internal policies. Tsargrad sued Google in Russian court, alleging breach of Google’s Terms of Service (shortened as the “Google Terms” hereinafter)).
[2] Alexander Layton, Anti-Arbitration Injunctions and Anti-Suit Injunctions: An Anglo-European Perspective, in Forum Shopping in the International Commercial Arbitration Context 131, 132 (Franco Ferrari ed., Sellier European Law Publishers 2013); Hannah L. Buxbaum & Ralf Michaels, Anti-Enforcement Injunctions, 56 N.Y.U. J. Int’l L. & Pol. 101, 109 (2024).
[3] Ellerman Lines, Ltd. v. Read, [1928] 2 K.B. 144, 153, 155, 158 (C.A.) (“If there is no authority for [anti-enforcement injunction] it is time that we made one” (Scrutton J.) at 153). Ellerman was a maritime case where salvors (the defendants), having agreed not to arrest the salved vessel upon provision of security, procured a foreign court arrest and obtained judgment notwithstanding the security’s deposit. The shipowners (the plaintiffs) sought damages for breach of the salvage agreement and an injunction enjoining enforcement of the foreign judgment.
[4] Google LLC v. NAO Tsargrad Media, supra note 1, at 25.
[5] Google LLC v. NAO Tsargrad Media, supra note 1, at 14, 34.
[6] F. Hoffman-La Roche Ltd. v. Empagran S.A. 542 U.S. 155, 165 (2004); William S. Dodge, International Comity in American Law, 115 Colum. L. Rev. 2071, 2107-2109 (2015).
[7] Id. at 164.
[8] Dodge, supra note 6, at 2099-2101.
[9] Minji Soshō-hō [Code of Civil Procedure], Law No. 109 of 1996, art. 3-7, para. 4 (Japan) (“An agreement that an action may be filed only with the courts of a foreign country may not be invoked if those courts are unable to exercise jurisdiction by law or in fact.”).
[10] Restatement (Second) of Conflict of Laws § 80 (Am. L. Inst. 1971).
[11] John F. Coyle, “Contractually Valid” Forum Selection Clauses, 108 Iowa L. Rev. 127, 127 (2022), citing Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49 (2013).
[12] Restatement (Second) of Judgments § 17(3), § 27 (Am. L. Inst. 1982).
[13] Google LLC v. NAO Tsargrad Media, supra note 1, at 21-22.
[14] The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).
[15] See, e.g., 28 U.S.C. § 1338(a) (2020).
[16] See, e.g., Cal. Lab. Code § 925(a) (2023).
[17] See, e.g., Del. Code Ann. tit. 8, § 111 (2023); Del. Code Ann. tit. 10, § 341 (2023).
[18] Google LLC v. NAO Tsargrad Media, supra note 1, at 15-19, citing e.g. Wilson v. Marchington, 127 F.3d 805, 809 (9th Cir. 1997); Cal. Civ. Proc. Code § 1716(d) (West 2024). (The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court.).
[19] Id. at 17.
[20] It should be noted that Ellerman was materially distinguishable from Tsargrad. In the former, the Court relied not only on a breach of contract but also on the subsequent fraudulent procurement of the judgment. By contrast, no comparable fraudulent conduct occurred in the latter. The mere filing of a lawsuit pursuant to foreign legislation does not, in itself, constitute fraud (see, Ellerman Lines, Ltd. v. Read, supra note 3, at 153, 155, 157-158).
[21] Google LLC v. NAO Tsargrad Media, supra note 1, at 26; Buxbaum & Michaels, supra note 2, at 117-118; Restatement (Second) of Torts § 933 comment b.
[22] Id. at 20 (citing Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008)).
[23] Id. at 27 (citing Frankel v. Bd. of Dental Examiners, 46 Cal. App. 4th 534, 54 Cal. Rptr. 2d 128 (1996)).
[24] Addiego v. Hill, 238 Cal. App. 2d 842, 846-847, 48 Cal. Rptr. 240 (1965).
[25] Id. at 847.
[26] Frankel v. Bd. of Dental Examiners, supra note 23, at 545-546.
[27] Cal. Civ. Code § 1654 (2024).
[28] See, e.g., Chevron Corp. v. Donziger, 768 F. Supp. 2d 581, 627 (S.D.N.Y. 2011) (acknowledging that vexatious litigation by the other party can be an alternative ground for global anti-enforcement injunction).
[29] Google LLC v. NAO Tsargrad Media, supra note 1, at 37 (stating that “[w]hatever the strength of Tsargrad’s Russian judgment, from a comity perspective, it is simply a bridge too far to enjoin a Russian citizen from enforcing a Russian judgment in Russian court.”).
[30] See Dodge, supra note 6, at 2109-2116.
[31] A party seeking a global anti-suit injunction should also seek, as a precautionary measure, an anti-anti-suit injunction in anticipation that the opposing party may attempt to obstruct the proceedings by applying for its own anti-suit injunction (see, Google LLC v. NAO Tsargrad Media, supra note 1, at 39).
[32] See, e.g., China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d Cir. 1987).
[33] George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 Colum. J. Transnat’l L. 589, 594 (1990).
[34] Buxbaum & Michaels, supra note 2, at 104-105.
[35] See, Google LLC v. NAO Tsargrad Media, supra note 1, at 37.
[36] See, Google LLC v. NAO Tsargrad Media, supra note 1, at 39.