In one of my many ponderings on research I would like to do but might never get an opportunity do (hence my repeated sharing of potential PhD topics) I came across an excellent post by Daniel Jowell QC on the application of EU competition law in the UK courts post-Brexit.
The usual disclaimer of course applies (let’s wait and see what happens in the future Treaty between the UK and the EU) yet one important consideration has wider appeal: how does one apply the classic conflicts suggestion that courts do not apply foreign public law, or if they do, do so with great caution?: both out of comity with the foreign State; and to protect one’s own ordre public.
Competition law is often seen as being of quasi-public nature. Daniel justifiably suggests that post Rome II (in which competition law is assigned a specific (if complicated) lex causae), the UK will revert to its standard rules which increase the possibility that UK courts might refuse to apply foreign competition law, including the EU’s, on public policy grounds.
One to remember.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.
A case title which sounds a bit like a Scandinavian crimi – that’s because it almost is. In  EWHC 2570 (Pat) Parainen Pearl et al v Jebsen Skipsrederi et al the facts amounted to claimants, who had purchased a vessel containing a pneumatic cement system patented by defendant (a company domiciled in Norway), seeking a declaration of non-infringement (DNI) of said patent. The purchase was somewhat downstream for the vessel had been sold a number of times before.
Claimants suggested jurisdiction for the UK courts for DNIs relating effectively to the whole of the EEA (at least under their reasoning; the specific countries sought were Sweden and Finland). For the English (and Welsh side of things jurisdiction is established without discussion under Article 5(3) Lugano, forum delicti. Reference was made to Wintersteiger and to Folien Fischer.
Claimants suggested that by the first sale to the original owner, defendants had ‘exhausted’ their intellectual property thus rendering the vessel into a good free to sold across the EEA. Should the court agree with that view, that finding of exhaustion would have to be accepted, still the argument went, across the EEA. Hence, an initial finding of exhaustion, given the need to apply EEA law the same in all EEA Member States, would have to be accepted by all other States and conversely this would give the English courts jurisdiction for pan-EEA DNIs.
Arnold J refers to among others Roche, Actavis v Eli Lilly, Marzillier. He holds that a potential finding by an English court of exhaustion may not necessarily be recognised and enforced by other courts in the EU or indeed EEA: it is not for the UK courts to presume that this will be so (despite their being little room for others in the EEA to refuse to enforce): ‘(Counsel for claimant) argued that.., on a proper application of European law, there could only be one answer as to whether or not the Defendants’ rights under the Patent in respect of the Vessel had been exhausted. In my view, however, it does not follow that it would be proper for this Court to exercise jurisdiction over matters that, under the scheme of the Lugano Convention, lie within the province of the courts of other Contracting States.’
Article 5(3) which works for UK jurisdiction, can then as it were not be used as a joinder-type (Article 6(1) Lugano; Article 8(1) Brussels I Recast) bridgehead for jurisdiction on further claims.
Conclusion: UK courts have no jurisdiction in so far as the DNIs extend beyond the UK designation of the Patent.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 184.108.40.206.4, Heading 220.127.116.11.
In  EWCA Civ 1581 Taftnet v Bogolyubov the Court of Appeal held that an English court can allow addition of a claim which is time barred by the governing law identified by Rome I or Rome II. At 72 Longmore J notes ‘Under Article 12.1(d) of Rome I and Article 15(h) of Rome II, the applicable foreign law governs limitation of actions.’ However neither Rome I nor Rome II apply to matters of procedure (Article 1(3) in both of the Rome Regulations).
The Court of Appeal clearly takes Article 1(3) at face value by allowing amendment of the claim even if it thence includes a claim time barred under the lex causae: not to do so would endanger the consistent application of English procedural law. Article 12 cq 15 do not sit easily with Article 1(3). That has been clear from the start and it is an issue which needs sorting out. In the absence of such clarification, it is no surprise that the English courts should hold as Longmore J does here.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 3, Chapter 4.
Heavily loaded. Applicable law in follow-up competition cases: watch the Dutch Supreme court in Air Cargo.
Quentin Declève alerted me to the Air Cargo damages compensation case currently making its way through the Dutch courts. (I have previously reported on jurisdictional issues re such cases; searching the tag ‘damages’ should help the reader).
I have difficulty locating the actual judgment addressing the issue in this post: namely applicable law in follow-up competition cases. I have however located one or two previous judgments addressing the damages claims assignment issue in same. This web of litigation seems to be particularly knotty and any help by Dutch or other readers would be appreciated.
At issue is whether Rome II applies to the facts ratione temporis; if it does, how Article 6 should be applied, in particular: locus delicti commissi, locus damni and ‘affected markets”; and if it does not, how the previous Dutch residual connecting factor ought to apply.
A case of great relevance to competition law and fair trading cases.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.
A quick flag to those of you following consumer protection and the Directive (2002/58) on privacy and electronic communications. In Case C-673/17 Planet49 the Court of Justice is being asked to clarify to what extent a website which pre-ticks boxes in general terms and conditions (here: to share relevant personal data) is compatible with relevant EU laws.
File of the case here (in Dutch only).
Thank you Michael Wise for alerting me to  NSWSC 1759 Live Group v Rabbi Ulman in which Sackar J at the NSW Supreme Court displays both sensitivity and adroitness in addressing the relationship between a Beth Din (a Jewish court) and the courts in ordinary.
The case I imagine will be of interest for those studying church /religion and state relations. It would seem to conclude that a Beth Din (or equivalents in other faiths) threat to impose religious sanctions on an unwilling party, will be considered contempt of the courts in ordinary and thus a no-go zone. However that as such the State courts should not hesitate to support arbitration through religious courts by compelling those who agreed to it in commercial relations, to submit to it. (Sackar J does highlight features of the particular case as not meeting natural justice requirements).
Thank you Stephen Pittel for flagging 2017 SCC 33 Douez v Facebook Inc. Stephen also discusses the forum non conveniens issue and I shall leave that side of the debate over to him. What is interesting for comparative purposes is the Supreme Court’s analysis of the choice of court clause in consumer contracts, which it refuses to enforce under public policy reasons, tied to two particular angles:
- ‘The burdens of forum selection clauses on consumers and their ability to access the court system range from added costs, logistical impediments and delays, to deterrent psychological effects. When online consumer contracts of adhesion contain terms that unduly impede the ability of consumers to vindicate their rights in domestic courts, particularly their quasi-constitutional or constitutional rights, public policy concerns outweigh those favouring enforceability of a forum selection clause.’ (emphasis added)
Infringement of privacy is considered such quasi-constitutional right.
- ‘Tied to the public policy concerns is the “grossly uneven bargaining power” of the parties. Facebook is a multi-national corporation which operates in dozens of countries. D is a private citizen who had no input into the terms of the contract and, in reality, no meaningful choice as to whether to accept them given Facebook’s undisputed indispensability to online conversations.’
With both angles having to apply cumulatively, consumers are effectively invited to dress up their suits as involving a quasi-constitutional issue, even if all they really want is their PSP to be exchanged, so to speak. I suspect however Canadian courts will have means of sorting the pretended privacy suits from the real ones.
A great judgment for the comparative binder (see also Jutta Gangsted and mine paper on forum laboris in the EU and the US here).