“The best known fleshed-out description of the concept [of the appropriate forum] is to be found in Lord Goff of Chieveley’s famous speech in the Spiliada case … That concept generally requires a summary examination of connecting factors between the case and one or more jurisdictions in which it could be litigated. Those include matters of practical convenience such as accessibility to courts for parties and witnesses and the availability of a common language so as to minimise the expense and potential for distortion involved in translation of evidence. Although they are important, they are not necessarily conclusive. Connecting factors also include matters such as the system of law which will be applied to decide the issues, the place where the wrongful act or omission occurred and the place where the harm occurred.”
“[94] Leaving aside questions as to the burden of proof, at common law the forum conveniens doctrine requires the English court to decide whether its jurisdiction or that of the suggested foreign court is the more suitable as a forum for the determination of the dispute between the parties. The traditional way in which this question has been framed speaks of the ‘forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice’ …. The requirement in complex litigation to define, at the outset, what is ‘the case’ to be tried runs the risk that the court will by choosing a particular definition prejudge the outcome of the forum conveniens analysis, as the Court of Appeal decided had occurred at first instance in Re Harrods (Buenos Aires) Ltd[1992] Ch 72 . Harman J had characterised ‘the case’ as a petition under the English Companies Act for relief for unfair prejudice in the conduct of the affairs of an English registered company, which made it ‘blindingly obvious’ to him that England was the appropriate forum. But the company carried on business entirely in Argentina. The matters complained of all occurred there, where there was a parallel jurisdiction to provide relief under Argentinian legislation. So the Court of Appeal preferred Argentina as the appropriate forum. Like the Court of Appeal in the present case, we therefore prefer for present purposes to identify the dispute between the parties as the matter to be tried, lest reference to ‘the case’ should introduce undue formalism into the analysis of a question of substance. [95] The question how the dispute should be defined has been the main bone of contention between the parties, both in this court and in the courts below. Is it, as the appellants say, in substance a dispute about the terms of a global FRAND licence, or is it, as the respondent maintains, both in form and in substance about the vindication of the rights inherent in English patents, and therefore about their validity and infringement, with FRAND issues arising only as an aspect of an alleged contractual defence? Thus far the respondent has had the better of that argument, both before the judge and the Court of Appeal. At the heart of the analysis which has thus far prevailed is the recognition that the owner of a portfolio of patents granted by different countries is in principle entitled to decide which patents (and therefore in which country or countries) to seek to enforce, and cannot be compelled to enforce patents in the portfolio granted by other countries merely because a common FRAND defence to the enforcement of any of them raises issues which might more conveniently be determined in another jurisdiction than that which exclusively regulated the enforcement of the chosen patents. [96] Were it necessary to choose between the rival characterisations of the substance of the dispute, we would have agreed with the choice made by the courts below. …”
“43. I do not accept that the change in the factual context of this case, specifically the newly confirmed jurisdiction of Chinese courts to settle global terms of a FRAND licence, alters the correct characterisation of the present proceedings. Floyd LJ’s reasoning for the characterisation of the dispute in Conversant with one qualification applies equally to the dispute in the present case. 44. The qualification arises from Floyd LJ’s paragraph 101. Since the Chongqing Proceedings in which global FRAND terms are to be settled do not involve a determination of the essentiality, infringement or validity of any Chinese patents, it cannot be said that leaving Nokia to seek a remedy in China would be to compel them to advance a case based on different patents. But in this part of Floyd LJ’s judgment he was distinguishing the facts of Conversant from those in Re Harrods (Buenos Aires) Ltd[1992] Ch 72 . As I understand the judgment, Floyd LJ was making the point that in Harrods (Buenos Aires) the underlying dispute between the parties would be the same whether heard in England or Argentina and that this would not be so in Conversant. The same applies in the present case. As in Conversant there would be an overlap in the form of the dispute as to what constitute FRAND terms for a licence under Nokia's SEPs. Otherwise the present proceedings have less in common with the Chongqing Proceedings than was the case between the two sets of proceedings hypothesised in Conversant since the Chongqing Proceedings do not involve any issues of essentiality, infringement or validity of any patent. There may be other differences, which I consider below.”
“ … I do not agree that broadening out the dispute between the parties so that it becomes viewed from a global perspective leads to the result that it can be correctly characterised as a dispute about FRAND terms. That is only possible if the allegations by Nokia of infringement of its SEPs in the various jurisdictions are brushed aside. Alternatively, if they are included with[in] the overall picture of the dispute, those allegations must be characterised as being concerned with the essentiality, infringement and validity of local patents in their various jurisdictions.”
“… The English courts have wide case management powers, and they include the power to impose a temporary stay on proceedings where to do so would serve the Overriding Objective: seeCPR 1.2 (a) and 3.1(2)(f). For example a temporary stay is frequently imposed (and even more frequently ordered by consent) in order to give the parties breathing space to attempt to settle the proceedings or narrow the issues by mediation or some other form of alternative dispute resolution. A temporary stay may be ordered where there are parallel proceedings in another jurisdiction, raising similar or related issues between the same or related parties, where the earlier resolution of those issues in the foreign proceedings would better serve the interests of justice than by allowing the English proceedings to continue without a temporary stay: see Reichhold Norway ASA v Goldman Sachs International[2000] 1 WLR 173 . But this would be justified only in rare or compelling circumstances: see per Lord Bingham CJ[2000] 1 WLR 173 at 185–186, and Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH[2005] EWHC 1453 (Comm) ,[2005] All ER (D) 111 (Jul).”
“126. In my judgment none of the factors raised by the parties tips the balance of justice as between the parties in favour of a stay or no stay. 127. That being so, I do not take the view that the circumstances of the present case are of the rare and compelling nature contemplated by the Court of Appeal in Reichhold Norway such that the balance of justice favours a stay of the FRAND issues before this court. No stay will be granted.”