The Court of Appeal in  EWCA Civ 2192 has reversed Hacon J’s ruling which I reviewed here in  EWHC 792 (Pat) Ablynx and VUB v Unilever. Hacon J had held that Article 31(2) does NOT mean that the Brussels courts, to whom jurisdiction has been assigned in a licence agreement, get to decide first on the engagement of Article 24(4)’s exclusive jurisdictional rule re the validity of patents. Hacon J had decided that A31(2) cannot apply if A24(4) is engaged.
Lewison LJ with great clarity discussed CJEU and other authority on the application of (now) A25 and A24(4) (GAT v Luk and Roche of course feature). He holds at 71 that under the terms of the Recast Regulation, the Belgian court is empowered to decide whether the English court has exclusive jurisdiction; and that that question will involve the question whether the choice of court agreement is overridden by A25(4). And at 75: ‘the mere fact that there is a whisper of invalidity does not automatically bring proceedings in a different member state to a juddering halt. If this approach were to be applied to article 31(2) it would enable the Belgian court to decide, on a provisional basis, whether there was a non-negligible possibility that the UK court would declare the UK designation of the patents invalid. If it came to that conclusion, it would then have to decide to what extent that invalidated the exclusive jurisdiction agreement.’ ‘The court first seised (in England) is required to stay its proceedings as soon as the designated court has been seised (in Belgium) and until such time as the latter court declares that it has no jurisdiction under the exclusive choice of court agreement.’ Lewison LJ does hold that the court seized has to carry out a prima facie review of the validity of the choice of court agreement.
Conclusion, at 77: ‘it is for the court designated in the exclusive jurisdiction agreement (i.e. the Belgian court) to decide whether (and, if so, to what extent) it is deprived of its jurisdiction as a result of article 25 (4).’
However subsequently and despite counsel claim at 78 that the English court should not even consider the question whether A25(4) was engaged, the Court of Appeal does hold that the English courts should carry out a prima facie review of A25(4), too: at 78: if a prima facie case is established that A24 (4) does not apply (which at 110 following lengthy discussion it holds it does not, prima facie, in the case at issue; hence the action is stayed in its entirety) then it will be for the Belgian court to decide that question definitively. The opposite, it suggests, would cause unnecessary delay and expense.
This is a very thin line between full respect for Article 25(4)’s anti-torpedo mechanism, and disciplining abuse. I am not sure this judgment settles the issue on A25(4)’s full implications for court’s respective powers.
(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52, Heading 184.108.40.206.