In Vestel Elektronik Sanayi Ve Ticaret A.S. & Anor v Access Advance LLC & Anor  EWCA Civ 440 – also known as Vestel v Philips, the Court of Appeal has rejected an attempt to establish jurisdiction for the Courts of England and Wales in a stand-alone competition law damages case.
Hacon J had earlier rejected jurisdiction in the claim which at first instance was formulated as an abuse of dominance claim. That claim was now reformulated with Birss LJ’s permission , with the relevant tort being the tort of patent infringement, and in effect the claim a negative declaration relating to that patent. That a claim for declaration of non-liability in tort (‘a ‘negative declaration’) may be covered by A7(2) BIa, was confirmed by the CJEU in C-133/11 Folien Fischer. In the case art issue, it would require Vestel to show it had not infringed a valid IP right. However Birss LJ holds that Vestel’s claim, aimed at obtaining a FRAND declaration for the patented technology (Vestel needs a licence for the technology patented by Philips, and wants it at FRAND terms: Fair, Reasonable and Non-Discriminatory).
The declarations sought by Vestel, after dropping the abuse of dominance plea, are in this form : i) A declaration that the terms offered are not FRAND; ii) A declaration that the terms of Vestel’s counter-offer are FRAND; and iii) Alternatively, a declaration as to the terms which would be FRAND. these, is it held, are not declarations of non-liability in tort. Vestel have not been given right to access the IPRs. They seek that right in specified terms. They cannot claim that a hypothetical right of entry can proactively ground jurisdiction on the ground that the non-existing access has not been transgressed. As Birss LJ puts it: ‘Vestel’s position is like that of a trespasser with no right to enter the property claiming that if they had permission then it would not be a trespass.’
This was a creative jurisdictional attempt. I think it justifiably failed.
EU Private International Law, 3rd ed. 2021, para 2.198; para 2.454.