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

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.

Derived rights and anti-suit injunctions: The Yusuf Cepnioglou

On Wednesday 20 April 2016 the Court of Appeal (Moore-Bick, Longmore and Macfarlane LJJ) handed down judgment in Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret AS (The “Yusuf Cepnioglu”) [2016] EWCA Civ 386.

Led by David Lewis QC also at 20 Essex Street, I appeared for the appellant charterers (the “Charterers”) against whom an anti-suit injunction had been ordered, first by Cooke J (ex parte) and then maintained by Teare J at the return date ([2015] EWHC 258 (Comm), [2015] 1 All ER (Comm) 966).

The decision gives a clear signal that the English courts will fiercely protect against the infringement of a party’s English law rights – even to the detriment of comity (which the court held was not a relevant consideration).  Thus, recognising its two previous decisions in The Hari Bhum [2005] 1 All ER Comm (715) and The Jay Bola [1997] 2 Lloyd’s Rep 279 were irreconcilable, the Court preferred the latter. Continue reading

Recovering Costs of Foreign Litigation Brought in Breach of an Arbitration Clause: Two Bites of the Cherry?

It is well known that English law allows recovery for damages for breach of contract in case of a breach of jurisdiction or arbitration clause (see our post on Blair J’s 2015 decision: Barclays Bank v ENPAM, for example). Parties commonly claim costs of addressing the foreign proceedings as such damages. However, what recovery should there be for an innocent party if the foreign court has already declined jurisdiction and awarded the innocent party its costs of the jurisdictional proceedings? Is there any loss still to be recovered in damages in the correct forum?

This issue was considered in the recent London Arbitration 1/16 (2016) 942 LMLN 2 (published on 11 January 2016). The dispute concerned a series of lay-up contracts, whereby the Respondent laid up vessels in the Claimant’s facility in the Far East. All contracts provided for London arbitration. Continue reading