Domestic anti-suits and the 6BPD gateways: Fujifilm Kyowa Kirin Biologics Co Ltd v Abbvie Biotechnology Ltd

Fujifilm Kyowa Kirin Biologics Company Ltd v (1) Abbvie Biotechnology Ltd and (2) Abbvie Ltd [2016] EWHC 2204 (Pat)

Arnold J gave judgment today in this important case on jurisdiction.  Thomas Raphael QC and I acted for the claimant biotechnology company (“Fujifilm”) and successfully resisted a challenge from a Bermudan domiciled defendant to the English Court’s jurisdiction which had been founded by service out of the jurisdiction.  Alexander Layton QC, also from 20 Essex Street, acted for the defendants.

Whilst the issues in this case arose within the context of an intellectual property dispute, many aspects of Arnold J’s decision will have a broader relevance to commercial disputes that give rise to issues concerning the Court’s jurisdiction to serve out or domestic anti-suit relief. Continue reading

Proposed UNCITRAL Convention on the Enforcement of Settlement Agreements arising from International Commercial Conciliation

UNCITRAL continues to make progress towards improving the enforcement of settlement agreements which follow from conciliation or mediation in commercial cases.

In 2014, UNCITRAL agreed that a Working Group should consider the issue of enforcement of settlement agreements resulting from international commercial mediation or conciliation. This was based on a proposal from the US delegation, addressing a perceived need for greater ease of enforcement of settlement agreements that had not been converted into formal judgments or arbitration awards.

Progress has been made by the Working Group in 2016, leading to greater clarity as to any likely final proposal.

The Working Group has developed a concept of a framework for conciliated settlement agreements akin to the New York Convention on the Recognition and Enforcement of Arbitral Awards. Continue reading

Failure to follow service rules is the end of a claim

In Asefa Yesuf Import and Export v A.P. Moller-Maersk A/S (16 June 2016) Simon Bryan QC (as a Deputy Judge of the High Court) made an important decision on service under EU rules.  I was instructed for the successful defendants.

The Judge set aside service of a claim form on defendant shipowners in Denmark on the basis that the proceedings had not been validly served under EU Regulation 1393/2007 on service of judicial documents on the territories of the Member States.

Although service did not establish substantive jurisdiction in this case, which was based on the Judgments Regulation, the failure to serve the claim form led the court to declare that it had no jurisdiction (in the narrow sense) to hear the case under CPR Part 11. The consequence for the claimants was that they had to issue a new claim form.  Unfortunately for the claimants, by this time, their claims had been extinguished under the one-year time bar in the contracts of carriage on which they wished to sue. Continue reading

Brexit?

This briefing note explores some of the alternatives to the Brussels I Regime that may be introduced if the UK were to vote to leave the EU.

The law relating to civil jurisdiction and judgments has undergone substantial change in recent years, with the entry into force of the Brussels I Regulation (Recast) (‘the Recast Regulation’) on 10 January 2015. That Regulation is the latest in a line of European legislative instruments governing both the allocation of civil and commercial jurisdiction among EU member state courts and the recognition and enforcement of their judgments. This regulatory regime, which has been in force in the UK in various guises since 1987, is likely to be significantly modified, if not entirely replaced, in the event of Brexit.

Read the full note here.

Lungowe v Vedanta – a boost for claims against multi-nationals

The opportunity for claimants from developing countries to bring claims in England and Wales against multi-national corporate groups that have caused loss in their home country has been given a significant boost by Coulson J’s recent decision in Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC).

1,826 Zambian claimants commenced proceedings in the TCC alleging that Konkola Copper Mines (“KCM”) and its parent company Vedanta Resources PLC (“Vedanta”) were liable for personal injury, damage to property, loss of income, and loss of amenity and enjoyment of land due to pollution/environmental damage caused by the Nchanga copper mine which KCM operated. The Defendants, as invariably happens in claims of this sort, denied that the English Court had or should exercise jurisdiction, arguing the natural forum for the dispute was clearly Zambia.

Coulson J rejected both Vendata’s and KCM’s challenges to the jurisdiction. Continue reading

Territorial limits on the application of EU competition law

In Iiyama Benelux BV v Schott AG [2016] EWHC 1207 (Ch) (23 May 2016), Mann J struck out competition law damages claims for around 1 billion euros because, among other things, he found that the claims brought were outside the territorial limits of EU competition law.

This judgment indicates that, having regard to the requirements of international law and comity, the English courts will adopt a cautious approach to asserted competition law damages claims where there is only a relatively slight connection to the EU/EEA (see a similar approach, for different reasons, by the Court of Appeal in the Air Cargo case). Continue reading

What benefit? Interpretation of a Jurisdiction Clause: Perella Weinberg Partners UK LLP v Codere SA

In its decision on 20 May 2016, the Commercial Court (Walker J) considered a non-standard jurisdiction clause which fell within the regime of the Brussels I Recast Regulation (Regulation 1215/2012).   Perhaps unsurprisingly, he held that a clause, expressed to confer non-exclusive jurisdiction on the English courts, “for the benefit of” the Claimants did not in fact confer exclusive jurisdiction on those courts.

The decision demonstrates that the court will use both a literal and a common sense business reading when construing the jurisdiction clause.  Further, the Court was reluctant to allow the parties to import new elements (such as symmetry of obligations) into Articles 25 and 31 of the Recast Regulation. Continue reading

Raphael QC on Petter v EMC: anti-suit injunctions and comity

Readers may be interested in a recent article on anti-suit injunctions written by 20 Essex Street’s Thomas Raphael QC.   The article, published in the LMCLQ, comments on the Court of Appeal’s controversial decision in Petter v EMC [2015] EWCA Civ 828, [2016] lLPr 6.

As the article exposes, the English court’s case law on anti-suit injunctions has become inconsistent and is in danger of failing to respect comity. The article stands back and takes a high level view of the fundamental principles which are necessary to give international legitimacy to the remedy.

The article makes for interesting reading and is highly recommended.   It has already been cited before the courts on three occasions.

The reference for the full text of the article, based on and developed from Tom’s lecture to Combar in December 2015, is [2016] LMCLQ 256.  Tom is also the author of the standard work on anti-suit injunctions: “The Anti-Suit Injunction” published by OUP.

Factors in Determining Domicile: Eng King Ltd v Vincent Petrillo

In this case, decided on 5 May 2016, the Commercial Court gave guidance as to the indicia for consideration in determining domicile.

Factual background

The Claimant was a Swiss businessman, who alleged that he had given the Defendant ( a Russian) $17million, which the Defendant had then wrongly kept rather than investing. The Claimant first brought Russian proceedings for unjust enrichment, on the grounds that the money had passed through Russian bank accounts. The Russian court rejected the claim on the grounds that the dispute was contractual, and that this precluded an unjust enrichment remedy. The Claimant then brought English proceedings, alleging fraudulent misrepresentation and breach of fiduciary duty by the Defendant. The Defendant denied fraud, and denied the jurisdiction of the English courts, stating that Russia or
Belarus was a more appropriate forum. Continue reading

The new LCIA Rules do not preclude applications for anti-suit relief

Mace (Russia) Ltd v Retansel Enterprises Ltd & Anor, 28 April 2016 (unrep)

In this unreported Commercial Court decision last week, Phillips J granted the Claimant an anti-suit injunction to restrain the Defendant from proceeding with an arbitration in Russia in breach of a London arbitration clause.

The case is interesting for two points: the grant of an anti-suit injunction despite a material non-disclosure ex parte; and the decision that the new LCIA Rules do not preclude applications for anti-suite relief. Continue reading