Posts Tagged anti-suit

Two negatives a positive make? A brief report on anti anti-suit in (among others) continental courts.

A flag on anti anti-suit. Steve Ross reports here on the Paris Court of First Instance (Tribunal de Grande Instance) judgment in RG 19/59311 IPCom v Lenovo /Motorola granting a preliminary injunction.  IPCOM GmbH & Co. KG is an intellectual property rights licensing and technology R&D company. Lenovo/Motorola a telecommunications company. As Steve writes, the French Court held that it had jurisdiction over the case with regard to a patent infringement claim and ordered Lenovo to withdraw the motion for an anti-suit injunction which that company had brought before the US District Court of the Northern District of California in so far as it concerns the French part of the patent.

Steve notes (I have not read the actual judgment) that ‘according to the French Court, the international French public order (ordre public) does not recognise the validity of an anti-suit injunction, except where its purpose is to enforce a contractual jurisdiction clause or an arbitral clause. Under all other circumstances, anti-suit injunction proceedings have the effect of indirectly disregarding the exclusive power of each sovereign state to freely determine the international jurisdictional competence of their courts.’

Peter Bert also reports last week a German anti anti-suit injunction at the Courts in Munchen, also for IPR cases.

For progress in the US anti-suit (one ‘anti’ only) application see order here.

Juve Patent report (as does Peter) that the High Court, too, has issued a (partial) anti anti-suit in the case however I have not been able to locate the judgment.

Note that continental courts (see in the French case) finding that anti-suit in general infringes ordre public is an important instruction viz future relationships with UK court orders post Brexit (should the UK not follow EU civil procedure).

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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Anti-suit and arbitration. Enka Insaat ve Sanayi v OOO “Insurance Company Chubb” et al.

[2019] EWHC 3568 (Comm) Enka Insaat ve Sanayi v OOO “Insurance Company Chubb” et al. is the very swift follow-up to [2019] EWHC 2729 (Comm) which I review here. I flag the case mostly for:

  • at 8, Baker J siding with Males J (and myself) per Nori Holding, that West Tankers is still good authority following Brussels Ia despite Wathelet AG’s suggestions in Gazprom;
  • the brief reference at 9, as to whether under Rome I injunctive relief for threat of contractual breach is covered by lex fori or lex contractus. Baker J concludes that issue simply by reminding us that Rome I does not apply to arbitration agreements;
  • At 47 ff the discussion of choice of law in spite of no express clause having been included to that effect. Specifically, with reference to Sulamerica, whether choice of seat may imply choice of law.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1. 

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A v OOO “Insurance Company Chubb” et al. Anti-suit pro arbitration does have its limits.

In A v OOO “Insurance Company Chubb” [2019] EWHC 2729 (Comm), Carr J refused an ex parte application for interim relief seeking (i.a.) anti-suit and discontinuation of Russian proceedings, pro agreed arbitration in London. Defendants are domiciled at Russia, France and Switserland. At 33 ff Carr J lists five reasons for refusal, despite as readers will know the English courts’ general willingness to assist arbitration. Three of her reasons jump out: the lack of full and frank disclosure (ia relating to contractual provisions); the lack of immediate urgency requiring ex parte application; and some of the measures sought being more than just interim measures (assessment of that nature required evidence by a Russian law expert on the further continuation, if any, of Russian proceedings following anti-suit).

A good reminder that these applications are neither straightforward nor should be taken for granted.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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Clearlake Shipping: anti-suit to support choice of court alive and well outside Brussels Ia.

In Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm) Andrew Burrows QC essentially halted an attempt by Xiang Da Marine to construct third party proceedings in Singapore so as to avoid choice of court pro England following a series of contracts relating to the chartering of a vessel.

The proceedings, which the interim anti-suit injunctions are restraining, are third party proceedings brought in Singapore by Xiang Da against Clearlake and Gunvor. Those third party proceedings have arisen in relation to an action in Singapore against Xiang Da brought by China-Base Ningbo Group Co Ltd (hereinafter ‘China-Base’). In so far as Xiang Da is liable to pay damages or otherwise suffers loss by reason of the claim brought against it by China-Base, it seeks an indemnity or contribution from Clearlake and Gunvor as third parties. (The claim by China-Base against Xiang Da in Singapore in the meantime has been discontinued. But the third party proceedings remain extant; and those third party proceedings could still be used by Xiang Da to seek to recover loss suffered by reason of the claim brought against it by China-Base.)

The judgment is best consulted for further context; RPC have analysis here, 22 Essex Street here. The judgment is a good reminder of the law on anti-suit injunctions. One can also appreciate that given privity of contract, anti-suit granted viz-a-vis third party proceedings must be treated with caution. Yet restrained application of same is a good way to discipline overly creative proceedings designed simply to circumvent choice of court (and which with respect to the third party involved are vexatious or oppressive).

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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Hiscox v Weyerhaeuser. The High Court is not easily impressed by pending foreign proceedings in anti-suit application (pro arbitration).

A quick note on Hiscox v Weyerhaeuser [2019] EWHC 2671 (Comm), in which Knowles J was asked to continue an anti-suit injunction restraining Weyerhaeuser from continuing proceedings in the US courts and ordering parties to turn to arbitration. He obliged.

In April 2018 Weyerhaeuser filed proceedings in the US District Court (Western District of Washington at Seattle)for a declaratory judgment in respect of certain of its insurance excess policies in the tower of excess liability. Weyerhaeuser sought, among other things, a declaration that there is no valid arbitration agreement applicable to any coverage disputes between itself and various defendant insurers and that the US District Court is the appropriate forum for any such disputes.

Knowles J lists the various proceedings pending in the US however particularly in the light of all parties being established businesses, is not impressed by arguments of comity or fairness to restrain the English courts from further involvement in the matter. He expresses the hope and expectation that the US courts will come to the same conclusion as himself, in light of the contractual provisions.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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W v L. Brussels IIa and forum non conveniens ex-EU.

When I reported [2019] EWHC 466 (Fam) V v M, I suggested that forum non considerations there, moot given that eventually jurisdiction of the English courts was upheld, would resurface in further cases. They have. [2019] EWHC 1995 (Fam) W v L eventually went much the same way as V v M.

The Brussels BIIa Regulation applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 , later confirmed in CJEU UD v XB C-393/18 PPU [2019] 1 WLR 3083 ). Brussels IIa has an intra-EU forum non conveniens regime (applied in C‑428/15, Child and Family Agency, on which I report here).

Art 8(1) of BIIa provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

MacDonald J at 30 posits that where the English court does have jurisdiction under Art 8 BIIa but there are proceedings also in a third party non-member state (here: Jordan) the issue becomes one of forum conveniens – which he subsequently discusses following the Spiliada criteria. In V v M to which current judgment refers at 34, Williams J reflected on whether forum non at all has calling following (he held it does; not convincingly). MacDonald J in current case first at 30 simply seems to accept such application. Then at 38 holds he need not decide this issue here (counsel had suggested the issue was in fact covered by Brussels Ia and the precedent value of Owusu therefor clear) for even if forum non conveniens has to be decided, it clearly points to England.

In conclusion, therefore: the issue still has not been settled and will, again, return.

Geert.

 

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Tigipko. High Court minded to extend CJEU’s Turner anti-suit prohibition to 1996 Hague Convention parties and family law.

Not all of [2019] EWHC 1579 (Fam) RJ v Tigipko is easily understood. Detail is kept private and proceedings were conducted in camera for evident reasons. The case concerns an earlier order to return a child from the Ukraine, which was followed up by an unsuccessful appeal to the Ukrainian courts to recognise this order under the 1996 Hague convention. Application in England now is to beef up the return order.

What is of interest to the blog is the consideration of action against the maternal grandfather. From the little detail in the judgment one can infer that he is complicit in the parental kidnapping. What exactly is being asked from him is not made clear however it is not quite like an anti-suit but rather (at 21) ‘a mandatory injunction requiring a party to commence and act in a foreign suit in a certain way, which is an order.’ Here, at 20, Mostyn J would seem to be minded to apply CJEU C-159/02 Turner v Grovit to Hague Convention States.

That, I would suggest, is a bold move not supported by either authority or spirit of EU law. Full argument on it will be heard later.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

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