“Unknown to the Claimant and/or Nokia at the material times, the Defendants and/or the undertakings of which they were a part, together with other undertakings (collectively ‘the Cartelists’) in the period from at least August 1999 to May 2011 entered into agreements and/or arrangements and/or concerted practices by which they or two or more of them: 37.1 exchanged commercially sensitive information; and/or 37.2 agreed to fix prices; and/or 37.3 agreed to restrict their output; and/or 37.4 agreed to limit their technological development; and/or 37.5 agreed to share or allocate markets and/or customers; and/or 37.6 engaged in bid-rigging.”
“13. Prior to the execution of the SAPA, during the Cartel Period, Nokia, whether by itself, its subsidiaries or its servants or agents, purchased from the Defendants components for the manufacture of handsets, including Li-ion Batteries; constructed and/or arranged for the construction of handsets; and distributed the said handsets and replacement Li-ion Batteries to mobile telephone wholesalers, and/or retailers worldwide. 14. Thereafter, during the Run-off Period, Nokia whether by itself, its subsidiaries or its servants or agents, continued to purchase and, following the execution of the SAPA, the Claimant purchased in like manner to Nokia, Li-ion Batteries from the Defendants for incorporation into their handsets and/or for sale as replacements.”
“Nokia was a direct purchaser of Li-ion Batteries”. ii) The Cartel is pleaded (in paragraph 37) in the following terms: “…the Defendants and/or the undertakings of which they were a part, together with other undertakings (collectively “the Cartelists”) in the period from at least August 1999 to May 2011 entered into agreements and/or arrangements and/or concerted practices…”. iii) Finally, causation loss and damage is pleaded in paragraph 181 as follows: “As an intended and/or foreseeable consequence of the conduct set out above, the Defendants and the undertakings of which they formed part caused the Claimant loss and damage, in that: 181.1 they caused the prices paid by Nokia and/or the Claimant for Li-ion Batteries, to be higher than they would have been absent the infringement. The prices charged by the infringing undertakings for Li-ion Batteries, were higher than they would have been absent the infringement; and 181.2 they caused Nokia and/or the Claimant to incur the additional cost of financing the overcharge it suffered, from the date on which it was paid up until the date of judgment.”
“…means any other entity controlled by, or under control with, a Party Defined in Article 1 of the PPA as “either BUYER or SELLER”. (or in case of BUYER, Nokia Corporation, BUYER’s parent company formed under the laws of Finland). For purposes of this definition “control” shall mean the direct or indirect ownership of fifty (50) percent or more of the shares or interests which are entitled to vote for the directors of an entity or the equivalent, for as long as such entitlement subsists, or which mean equivalent power over management of an entity.”
“25.1 This Agreement shall be governed by and construed in accordance with United Kingdom law.”
“(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter. (2) An application may be made notwithstanding that the matter is to be referred to arbitration only after the exhaustion of other dispute resolution procedures. (3) An application may not be made by a person before taking the appropriate procedural step (if any) to acknowledge the legal proceedings against him or after he has taken any step in those proceedings to answer the substantive claim. (4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed. (5) If the court refuses to stay the legal proceedings, any provision that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.”
“if any businessman did want to exclude disputes about the validity of a contract, it would be comparatively easy to say so.”
‘The Agreement contains the entire agreement of the parties with respect to the subject matter hereof and there are no other promises, representations or warranties affecting it. This Agreement cannot be modified in any way except in writing signed by the parties. No claims shall be made hereunder for prospective profits or for indirect or consequential damages except as otherwise provided in the footnotes attached to the schedule. This Agreement shall be governed by the laws of England excluding its conflict of laws rules and the United Nations Convention on the International Sale of Goods Act shall not apply. For the purposes of the resolution of disputes under this Agreement, each party expressly submits itself to the non-exclusive jurisdiction of the Court of England.’ 4. Thus, the parties’ contract was made on the basis of English law and the non-exclusive jurisdiction of the English courts. Prospective profits and indirect or consequential damages were excluded. It is not clear what follows from the exclusion of English conflict of law rules, which might be said to be a large exclusion, but no point has been taken on that.” ‘The Agreement contains the entire agreement of the parties with respect to the subject matter hereof and there are no other promises, representations or warranties affecting it. This Agreement cannot be modified in any way except in writing signed by the parties. No claims shall be made hereunder for prospective profits or for indirect or consequential damages except as otherwise provided in the footnotes attached to the schedule. This Agreement shall be governed by the laws of England excluding its conflict of laws rules and the United Nations Convention on the International Sale of Goods Act shall not apply. For the purposes of the resolution of disputes under this Agreement, each party expressly submits itself to the non-exclusive jurisdiction of the Court of England.’
“40. In my judgment there is no answer to Mr. Beard’s powerful submissions concerning the construction of article IV. The clause simply was never intended to apply to the use to which Ryanair’s contract claim seeks to put it. 41. It follows that there is no prospect of Ryanair having a contractual claim under art IV or an implied term as would give a remedy, albeit to goods supplied under the contract itself, which reduplicated the effect of a statutory duty pursuant to article 101.”
“Prices are agreed on separate negotiations.”
“26.1 This Agreement supersedes all previous arrangements, communication and agreements between the Parties in relation to the subject matter of this Agreement. This Agreement supersedes any general conditions of purchase/sale and other standard conditions. The Appendices shall be an integral part of this Agreement. I should say that I attach no weight to the reference to “previous arrangements, communication and agreements”: this has all the hallmarks of a standard-form provision, and says nothing about whether such previous arrangements in fact existed. 26.2 Appendices 1 and 2 may be amended by a mutual written agreement (in paper, electronic or other format), even if not physically incorporated into this Agreement document. Other amendments to this Agreement shall be valid only if in writing and signed by both Parties.”
“10.1 The Price(s) are stated in Appendix 2 and shall include all SELLER’s obligations in accordance with this Agreement. Changes in Prices(s) shall be mutually agreed in writing and negotiated in good faith. The Price(s) are set in JPY unless otherwise mutually agreed in Appendix 2 or otherwise.”
“19.1 EXCLUDING WARRANTY CLAIMS UNDER ARTICLE 16, INDEMNIFICATION CLAIMS UNDER ARTICLE 17, NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOST PROFITS, LOST OPPORTUNITIES, LOST REVENUES OF THE OTHER PARTY OR OTHER SIMILAR INDIRECT DAMAGE INCURRED BY THE OTHER PARTY AND ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNLESS SUCH DAMAGE IS CAUSED BY GROSS NEGLIGENCE OR WILFUL MISCONDUCT.”
“21.1 SELLER agrees to promptly inform BUYER in writing of event(s) coming to SELLER’s attention that reasonably may affect SELLER’s ability to meet any of its obligations under the Agreement. 21.2 The affected Party is not liable for a failure to perform any of its obligations under this Agreement to the extent it proves that the failure was due to Force Majeure. The affected Party shall without delay take reasonable steps to limit or minimise the consequences of Force Majeure. If Force Majeure continues for more than seven (7) years, BUYER may cancel the relevant Purchase Orders.”
“In some contractual contexts the relevant background expectations may extend further to an expectation that the parties will share information relevant to the performance of the contract such that a deliberate omission to disclose such information may amount to bad faith. English law has traditionally drawn a sharp distinction between certain relationships – such as partnership, trusteeship and other fiduciary relationships – on the one hand, in which the parties owe onerous obligations of disclosure to each other, and other contractual relationships in which no duty of disclosure is supposed to operate. Arguably, at least, that dichotomy is too simplistic. While it seems unlikely that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange, many contracts do not fit this model and involve a longer term relationship between the parties [to] which they make a substantial commitment. Such “relational” contracts, as they are sometimes called, may require a high degree of communication, cooperation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties’ understanding and necessary to give business efficacy to the arrangements. Examples of such relational contracts might include some joint venture agreements, franchise agreements and long term distributorship agreements.”
“31. Mr. Beard further submitted that Ryanair’s construction of the clause renders it otiose: because it is triggered by proof of a breach of statutory duty which provides its own remedy, and, on Ryanair’s case, provides the very remedy which the statutory tort provides. 32. If therefore article IV does not cover or allow Ryanair’s contract claim or permit the use to which Ryanair seeks to put it, then it becomes all the more unlikely that article 12.1 should be interpreted to cover a claim in statutory tort whose ramifications are so far removed from the considerations of contractual remedies which the parties would otherwise be reasonably regarded as having in mind in a jurisdiction clause which is concerned with ‘the resolution of disputes under this agreement’, a fortiori where the same clause expressly excludes claims for ‘prospective profits or for indirect or consequential damages’. 33. In this connection Mr Beard pointed out in his submissions some of the broad and idiosyncratic consequences of a claim for breach of statutory duty pursuant to article 101: such as that such a claim properly concerns tortious arrangements between rivals generally unrelated to a particular contract between a buyer and a seller; that such arrangements can come in all varieties; that it is possible to sue any member of a cartel for damages caused by each and any member of the cartel; that a customer of various members of a cartel may have different jurisdiction clauses in its contracts with such members; that losses caused by different cartel arrangements may be very various; that in any case such losses may also vary from those caused by being charged prices higher than a more competitive model would indicate to losses on business missed because of inflated prices, i.e. losses due to non-sales (an example of loss of profits excluded from article IV); that direct customers from a cartel may suffer no loss because they have passed on the higher price to their customers, in circumstances where it is their customers, so-called indirect purchasers, who have suffered the inflated prices and may correspondingly sue the cartel members. Mr. Beard submitted that it is unlikely that parties to a clause such as article 12.1 contemplated such claims for damages for breach of statutory duty, which are likely to arise between multiple claimants and multiple defendants, as falling naturally or presumptively within a contractual jurisdiction clause.” vi) Rix L.J. found that there was “no answer to Mr. Beard Q.C.’s powerful submissions”
“8. …it appears to me that the Brussels I Regulation, the aim of which is to create a system of rules of jurisdiction for the Union in respect of cross-border disputes in civil and commercial matters, is not fully geared towards ensuring effective private implementation of the Union’s competition law (or ‘private enforcement’, as it is usually called in this field) in circumstances such as those in this case. 9. The application of certain provisions of that regulation is likely to lead to a territorial division of jurisdiction between the courts of the Member States which might, on the one hand, be inadequate from the point of view of the geographical scope of EU competition law or, on the other hand, make it more difficult for persons adversely affected by unlawful restrictions of competition to seek and obtain full reparation for the damage that they have suffered. It seems to me, therefore, possible that the authors of such restrictions could use those provisions of international private law to bring about a situation in which the civil-law consequences of a single, serious infringement of Union competition rules are to be determined in the context of a series of actions scattered across the various Member States. 10. The general conclusion that I shall draw from this request for interpretation is that, de lege ferenda, because of the particular repercussions which cross-border anti-competitive practices are likely to have in terms of judicial cooperation in civil matters, especially when they are complex, as they are in the main proceedings, it would be advisable for the EU legislature to envisage incorporating in the Brussels I Regulation a rule of jurisdiction apt to cover such practices, on the lines of the conflict-of-laws provision which usually applies specifically to obligations deriving from acts restrictive of competition under the regulation usually known as ‘Rome II’.” ii) The Advocate General’s starting point was, therefore, his appreciation of what he regarded as certain inadequacies in the Brussels I Regulation when dealing with a single, continuous, infringement of competition law. He sought, through interpretation of the Brussels I Regulation, to resolve these perceived inadequacies by unifying causes of action in a single forum: “27. …I consider that the interpretation and application of the Brussels I Regulation must make it possible to preserve the full effectiveness of provisions of EU competition law, which are vitally important for the internal market and constitute a fundamental element of the EU economic constitution because, as the Court has already stressed, Article 85 of the EC Treaty, now Article 101 TFEU, is a ‘fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community, and, in particular, for the functioning of the internal market’. Furthermore, the procedural rules of EU law must, to a certain extent, serve the substantive rules of EU law, in the sense that the former are an instrument which enables the rights and obligations of private and public persons to be made tangible, particularly in terms of the right to an effective remedy and to a fair trial, as affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. … 52. In conclusion, by analogy with the Court’s ruling in Besix, I consider that the special jurisdiction rule in matters of tort, delict or quasi-delict, laid down in Article 5(3) of the Brussels I Regulation, is inoperative when, as in the case in the main proceedings, the place where the harmful event allegedly occurred cannot be determined, by virtue of the fact that the infringement of Article 101 TFEU on which the action is based consists of actions notable for the multiplicity of places where they were agreed and/or performed, with the result that it is not possible to determine clearly and usefully what court has a particularly close link with the dispute as a whole. 53. In my opinion, in such a case jurisdiction must be determined either by applying the general rule in Article 2(1) of the Brussels I Regulation or by applying other special jurisdiction rules specified in that regulation, such as the rule in Article 6(1), which allows actions brought against several defendants to be combined before a single court, provided that the conditions for applying one or other of those rules are satisfied in the case in point. In that connection, it must be pointed out that it is possible for account to be taken of the connection between actions against several defendants, as a basis for establishing jurisdiction, only in the context of Article 6(1), which provides for that possibility solely where there is the strong connecting link of the domicile of one of the defendants, but not in the context of a provision such as Article 5(3) of the Brussels I Regulation whose application depends on the place where an event occurred. … 56. In accordance with Article 6(1) of the Brussels I Regulation, all the claims on the part of a single applicant against a number of defendants may be brought before a court of a Member State in whose jurisdiction at least one of those defendants, who will be referred to here as the ‘anchor defendant’, is domiciled, provided always that there is a connecting link between those heads of claim. In this regard, the relevant provision expressly states that the claims must be ‘so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’. 57. By allowing actions to be centralised before a single court and by extending the jurisdiction of the latter to cover defendants vis-à-vis whom the court would not have been able to give a ruling failing that extension, Article 6(1) reflects the objectives of sound administration of justice, by eliminating unnecessary proceedings and preventing the concomitant risk of concurrent proceedings and conflicting decisions, as referred to in the Brussels I Regulation. … 71. I would emphasise that, if it were to be held that Article 6(1) of the Brussels I Regulation was not applicable to proceedings such as the main proceedings in this case, that would mean that different courts would have to examine the alleged damage, without any consultation, in the light of the various domestic legal orders, with the attendant risk that each of the participants in the same unlawful cartel might be ordered to pay different amounts of damages, when it would be desirable, not to say necessary, to rule uniformly on the claims submitted by the same applicant. 72. As the Commission points out, in my view rightly, ‘the effectiveness of this provision would be undermined if it were to be interpreted so strictly that it would render impossible, in such circumstances, the bringing of joint actions against all the participants in a cartel before a court which is situated in the domicile of one of the defendants belonging to the cartel, on the sole grounds that it lacked international jurisdiction.’ 73. In the light of these factors, I consider that a situation in which several companies established in different Member States are tried separately, before different courts, and not before a single court, for the purpose of obtaining damages in respect of the same infringement of EU competition law, resulting from acts committed at different times and in different places but constituting a single and continuous infringement, is liable to lead to irreconcilable judgments, within the meaning of Article 6(1) of the Brussels I Regulation, if the cases are judged separately. 74. In accordance with the Court’s case law, it will be for the referring court to assess, in the light of all the elements in the case, whether there exists such a risk in the proceedings before it. 75. Like the Commission, I note that such an interpretation has the not inconsiderable advantage of reflecting the intention expressed by the legislature in the Rome II Regulation, especially in Article 6 entitled ‘Unfair competition and acts restricting free competition’, paragraph 3 of which sets out the possibility, for a claimant suing several defendants in the context of a dispute in this field, of centralising his claims before a single court ‘in accordance with the applicable rules on jurisdiction’ and of basing his claims on the law of that court. To my mind, due account should be taken of this legal guideline, in the interests of coherence between the instruments of Union law applicable to cross-border disputes, despite the fact that, as the defendants in the main proceedings contend, the Rome II Regulation is not, ratione temporis, applicable in this case.” iii) Thus, through interpretation, the Advocate General effectively sought to bring the Brussels I Regulation into line with Rome II, in order to ensure a single forum. He then considered the effect of jurisdiction and arbitration clauses, as possible derogations from the regime he had thus constructed. iv) The claim in the Landgericht Dortmund was in fact an agglomeration of claims. A number of victims of the cartel had assigned their claims to a single claimant entity, which was bringing these proceedings. Of course, these victims had purchased the cartelised product (hydrogen peroxide) pursuant to a variety of contracts containing a variety of different arbitration and jurisdiction clauses, which (no doubt) pointed in various jurisdictional directions. The Advocate General (and the Court) had limited information: see [94]. As to choice of jurisdiction and arbitration clauses, the Advocate General showed a high degree of hostility to these, particularly if they pointed to a jurisdiction outside the EU: “97. …In the first place, it must be recalled that choice of jurisdiction clauses, under which the parties, at least one of which had its domicile in the territory of a Member State, have designated a court of a Member State to hear and determine disputes arising or likely to arise out of a particular legal relationship, fall within the ambit of Article 23 of the Brussels I Regulation. 98. On the other hand, arbitration clauses are, as a matter of principle, excluded from the scope of that regulation. It follows that questions relating to the validity of, and the possibility of relying on, those clauses ought to be governed by the national law of each of the Member States and by the international conventions binding the latter. Nevertheless, the Court has held that if, because of the main subject-matter of the dispute, that is to say, the nature of the rights to be protected in proceedings, such as a claim for damages, the proceedings brought before a national court fall within the scope of the Brussels I Regulation, then an incidental preliminary issue concerning the applicability of an arbitration agreement, including its validity, falls within the scope of that regulation too and it is, therefore, exclusively for that court to rule on the objection of lack of jurisdiction based on the existence of an arbitration agreement and on its own jurisdiction under the provisions of that regulation. 99. Despite this difference in terms of the applicability of the Brussels I Regulation, it must be recalled that the two categories of clause at issue have the common effect of derogating from the rules on jurisdiction laid down in that regulation, by reason of respect for the autonomy of the parties concerning the determination of the court, whether national or arbitral as the case may be, to which they mean to entrust the task of settling their disputes. 100. Nevertheless, a clause conferring jurisdiction in accordance with Article 23 of the Brussels I Regulation may confer jurisdiction only on the courts of Member States of the European Union and by extension, under the Lugano Convention, on the courts of the Parties to that Convention, whereas an arbitration clause may provide that arbitration is to take place in any third State whatsoever. The likelihood of provisions of EU competition law not being applied, even by way of public policy rules, is much greater when jurisdiction is conferred on arbitrators or courts of States not bound by the Lugano Convention.” v) The Advocate General considered that a distinction needed to be drawn between (i) jurisdiction clauses falling within Article 23 of the Brussels I Regulation, on the one hand, and (ii) jurisdiction clauses outside Article 23 and arbitration clauses, on the other. vi) As regards clauses to which Article 23 applied: “109. I would, in particular, recall that it follows from the Court’s case-law in relation to Article 23 of the Brussels I Regulation, on the one hand, that the validity of a jurisdiction clause inserted in a contract is dependent on the parties that concluded it having clearly indicated their agreement to that clause and, on the other hand, that the court seised is required to examine whether that clause was the subject of consensus between the parties. … 111. Like CDC, I very much doubt that a clause conferring jurisdiction, included in contracts such as those at issue, could satisfy the requirement of clear unvitiated consensus, because the point is the attribution of jurisdiction to the court designated to settle a case relating to the tortious liability of one of the contracting parties deriving from an unlawful cartel when, at the time it concluded the agreement, the person allegedly injured was unaware of the existence of the cartel. 112. On the other hand, it could, to my mind, be accepted that the person injured should enter into an agreement conferring jurisdiction after it had learned of the existence of the unlawful cartel agreement prohibited by Article 101 TFEU, the former agreement being entered into after the dispute arose, and hence accepted in full knowledge of the facts.” vii) As regards jurisdiction clauses outwith Article 23 and arbitration clauses: “118. With regard to the clauses conferring jurisdiction to which Article 23 of the Brussels I Regulation proves not to be applicable and to arbitration clauses, the problem raised by the referring court is more complex, for it must be tackled by applying, not the provisions of that regulation, as interpreted by the Court, but rules of national law, whose implementation must be consistent with the binding provisions of EU primary law, and in particular with Article 101 TFEU. 119. In this connection, I would recall that, according to its consistent case-law in the judgments in Courage and Crehan and Manfredi and Others, the Court has held that, failing EU legislation in that sphere, it is for the domestic legal system of each Member State to prescribe the detailed rules for exercising the right to compensation for damage resulting from an agreement, decision or concerted practice prohibited under Article 101 TFEU, subject to observance of the principles of equivalence and effectiveness which require, in particular, that those national rules should not hinder the full effectiveness of Union competition law and should take account, more specifically, of the objective contained in that article. In my opinion, it therefore follows in this case that the application of national rules may not allow the jurisdiction and/or arbitration clauses at issue to prejudice that full effectiveness. 120. Furthermore, the Court has held that the full effect of Article 101 TFEU and, in particular, the effectiveness of paragraph 1 thereof would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or conduct liable to restrict or distort competition, such as the unlawful cartel agreement which, in this case, forms the basis for CDC’s claims. The guarantee that individuals may seek such compensation is likely to discourage agreements or practices of this nature, which are often concealed, and it therefore contributes significantly towards maintaining effective competition within the Union. 121. As a general rule, when faced with an arbitration clause, a court of a Member State should decline jurisdiction and refer the parties to arbitration, at the request of one of the parties, unless that court finds that the arbitration agreement relied upon has lapsed, is inoperative or cannot be applied in the dispute before it, following scrutiny within the scope of its own jurisdiction, in the light of the requirements of domestic law, since the Brussels I Regulation does not regulate the conditions governing the validity of such a clause. The same would apply to clauses designating a national court which are not covered by Article 23 of the regulation. 122. However, the principle requiring effective implementation of the prohibition under EU law of agreements, decisions and concerted practices, to which the Landgericht refers, can, in my view, be invoked vis-à-vis the jurisdiction or arbitration clauses at issue for the purpose, in particular, of ensuring that all persons have the right to seek full compensation for losses resulting from a prohibited agreement, such as those alleged in the main proceedings. 123. In this connection, it is to be observed that the Court held in the judgment in Eco Swiss, which concerns the relationship between arbitration and the competition rules under EU law, that Article 85 of the Treaty, now Article 101 TFEU, ‘may be regarded as a matter of public policy’. The Court held that ‘where its domestic rules of procedure require a national court to grant an application for annulment of an arbitration award where such an application is founded on failure to observe national rules of public policy, it must also grant such an application where it is founded on failure to comply with [that article]. Community law requires that questions concerning the interpretation of the prohibition laid down in [that article] should be open to examination by national courts when asked to determine the validity of an arbitration award and that it should be possible for those questions to be referred, if necessary, to the Court of Justice for a preliminary ruling’. 124. By analogy, I consider that national courts are required by EU law not to apply an arbitration clause, or a jurisdiction clause not governed by Article 23 of the Brussels I Regulation, in cases where the implementation of such a clause would hamper the effectiveness of Article 101 TFEU. In this connection, it may with advantage be noted that the judgment in Eco Swiss predates those in Courage and Crehan and Manfredi and Others, which upheld the recognition in EU law of a right to compensation for all damage suffered by persons adversely affected by unlawful barriers to free competition, not only in the interests of those persons but above all in order to preserve the general interests bound up with that freedom. The case-law after those two judgments has further reinforced that approach, by encouraging the private implementation of those competition rules (commonly known as ‘private enforcement’), particularly following the removal of the potential obstacles deriving from national provisions. 125. It is true that the application of jurisdiction or arbitration clauses is not in itself an obstacle to the effectiveness of Article 101 TFEU within the meaning of the case-law cited. In particular, the fact that clauses of this type may, if they are valid and applicable to the dispute concerned, entail the ousting of the special bases of jurisdiction provided for in Articles 5 and/or 6 of the Brussels I Regulation does not necessarily have the effect of depriving the persons allegedly adversely affected by damage caused by an unlawful cartel agreement of the possibility of obtaining full compensation on that basis, given that they are not prevented from bringing actions before each of the appointed national or arbitration courts, even though, given the wide variety of clauses relied upon in this case, their application would certainly be likely to render such a course of action more difficult. 126. None the less, I consider that it is a matter of some delicacy to put that theoretical position into practice in the particular context of an unlawful cartel agreement, involving numerous participants and persons allegedly adversely affected, whose implementation has generated a multitude of individual supply contracts, possibly concluded between different companies in the group to which a vendor or purchaser belongs. In the case of a horizontal restriction of competition, such as that on which the main proceedings are based, I find it difficult to accept an exclusion of the normal forms of judicial protection, unless the parties allegedly adversely affected have expressly entered into an agreement to that effect and the national arbitration courts to which jurisdiction has been assigned in this way are required to apply the provisions of EU competition law as rules of public policy.” viii) The Advocate General’s conclusion at [132] was as follows: “In consequence, I consider that Article 101 TFEU must be interpreted as meaning that, in the context of an action for compensation for damage caused by an agreement declared to be contrary to that article, the implementation of jurisdiction and/or arbitration clauses does not in itself compromise the principle of the full effectiveness of the prohibition of agreements, decisions and concerted practices. In so far as a clause of one or other of those categories could be declared applicable, pursuant to the law of a Member State, in a dispute concerning liability in matters of tort, delict or quasi-delict that might follow from such an agreement, that principle, in my view, precludes jurisdiction over that dispute being attributed under a clause of a contract whose content had been agreed when the party against whom that clause is relied on was unaware of the cartel agreement in question and of its unlawful nature, and could not, therefore, have foreseen that the clause could apply to the damages sought on that basis.”
“Given that the circumstances of the present case are characterised by the consolidation of a number of potential claims for damages brought by the applicant in the main proceedings which had been assigned to the applicant by several undertakings allegedly victims of the Hydrogen Peroxide cartel, it should be pointed out from the outset that the transfer of claims by the initial creditor cannot, by itself, have an impact on the determination of the court having jurisdiction under Article 5(3) of Regulation No 44/2001…” ii) With great respect, this is obviously right. The consequence – spelt out in [36] – was that “the location of the harmful event must be assessed for each claim for damages independently of any subsequent assignment or consolidation”
“However, given that the jurisdiction of the court seised of the matter by virtue of the place where the loss occurred is limited to the loss suffered by the undertaking whose registered office is located in its jurisdiction, an applicant such as CDC, who has consolidated several undertakings’ potential claims for damages, would therefore, in accordance with the case-law set out in paragraph 35 above, need to bring separate actions for the loss suffered by each of those undertakings before the courts with jurisdiction for their respective registered offices.” iii) The Court then turned to jurisdiction and arbitration clauses, and noted that it did “not have sufficient information at its disposal in order to provide a useful answer to the referring court”
“6.36 In any proceedings to which rule 6.32 or 6.33 does not apply, These rules deal respectively with “Service of the claim form where the permission of the court is not required-Scotland and Northern Ireland” and “Service of the claim form where permission of the court is not required-out of the United Kingdom”. the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 ofPractice Direction 6B apply. 6.37 (1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found. (2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) ofPractice Direction 6B , the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim. …” (1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found. (2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) ofPractice Direction 6B , the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim. …”
“It was held by the House of Lords in Seaconsar (Far East) Ltd v. Bank Markazi [1994] 1 A.C. 438 At 456. that the standard of proof in respect of the cause of action relied on was whether, on the evidence, there was a serious question to be tried, i.e. a substantial question of fact or law, or both, which the claimant bona fide desired to have tried. There is no reason to believe that the standard introduced underCPR 6.21 (b) of a “reasonable prospect of success” differs in any material way from the “serious issue to be tried” test.”
“73. The necessary or proper party head of jurisdiction is anomalous, in that by contrast with the other heads, it is not founded upon any territorial connection between the claim, the subject matter of the relevant action and the jurisdiction of the English courts: The Brabo[1949] A.C. 326, 338, per Lord Porter. Piggott, Foreign Judgments and Jurisdiction (3rd ed, 1910), pt III, p 238, said: “This is perhaps the most important of the sub-rules, for it throws the net of jurisdiction over a wider area; and the principle of considering the nature of the cause of action which pervades the whole subject, appears here to be ignored.”
“I agree…that caution must always be exercised in bringing foreign defendants within our jurisdiction under O.11 r.1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.” 74. Among the questions which arise on this appeal are these: When is an action “properly brought” against the defendant served within the jurisdiction (and outside the jurisdiction under the English rules), referred to here as D1, or “the anchor defendant”? When will the foreign additional defendant, or D2, be a “proper party”? In particular, what is the merits threshold for each of those claims? Is the claim not “properly brought” against D1 if the motive of the claimant in suing D1 is to add D2? Does it matter that in practice the claimant will not recover against D1? 75. The leading decisions are the decisions of the House of Lords in Improvement Commissioners v. Armement Anversois SA (The Brabo) [1949] A.C. 32 and Derby & Co Ltd v. Larsson [1976] 1 W.L.R. 202, and of the Court of Appeal in Massey v Heynes & Co. (1888) 21 Q.B.D. 330 and Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd[1983] Ch. 258 . The members of those tribunals do not all speak with one voice, but the following propositions may be derived from them. The motive in suing the anchor defendant 76. First, the mere fact that D1 is sued only for the purpose of bringing in D2 is not fatal to the application for permission to serve D2 out of the jurisdiction: The Brabo[1949] A.C. 326, 338-9, per Lord Porter; Derby & Co Ltd v. Larsson [1976] 1 W.L.R. 202, 203, per Viscount Dilhorne. 77. The question was discussed extensively (and somewhat discursively) in Multinational Gas and Petrochemical Co. v Multinational Gas and Petrochemical Services Ltd[1983] Ch. 258 , but without reference to the relevant passages in The Brabo and without any citation to the court of Derby & Co. Ltd v. Larsson. 78. The point arose in Multinational Gas because D1 was in liquidation and therefore the plaintiff had no real prospect of recovery against D1. Lawton L.J. did not treat as fatal to the application the fact that the sole, or predominant, reason for beginning the action against a party duly served within the jurisdiction was to enable an application to be made to serve the parties outside the jurisdiction. It was instead a relevant factor in the exercise of the discretion: at 268. Dillon L.J. said (at 285) that an action was not to be regarded as properly brought against D1 if the true inference from all the facts was that the sole reason for suing D1 was to found an application to join foreign defendants in the action. But although he held that the predominant reason for the action against D1 was to enable foreign defendants to be joined, he regarded the action as bona fide and properly brought: at 286-287. May L.J. considered that if there was a good arguable case against D1 in an action in which any judgment obtained against that defendant might or would not be met owing to lack of funds, the fact that the main or predominant purpose of keeping D1 in the proceedings was to enable the plaintiff to bring in D2 was not a ground for saying that the proceedings were not properly brought against D1: see at 273-279. See also Goldenglow Nut Food Co Ltd v. Commodin (Produce) Ltd [1987] 2 Lloyd's Rep. 569, 578 (CA). 79. The better view, therefore, is that the fact that D1 is sued only for the purpose of bringing in the foreign defendants is a factor in the exercise of the discretion and not an element in the question whether the action is “properly brought” against D1, provided that there is a viable claim against D1. “Bound to fail” 80. Second, the action is not properly brought against D1 if it is bound to fail: The Brabo[1949] A.C. 326, 338-9, per Lord Porter. He also put the point (echoing Witted v Galbraith[1893] 1 Q.B. 577) on the basis that leave will not be granted if the lack of a plausible cause of action against D1 shows that the presence of D1 in the jurisdiction is being used as a device to bring in D2. See also Multinational Gas and Petrochemical Co. v. Multinational Gas and Petrochemical Services Ltd[1983] Ch. 258 , 268, 273-274.” “I agree…that caution must always be exercised in bringing foreign defendants within our jurisdiction under O.11 r.1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.”
“…I do not think that the court ought to assume that the defendants within the jurisdiction would not avail themselves of any defence open to them. In this case it was suggested that the second and third defendants might not assert the immunity of the Crown. But if one valid line of defence is assumed to be abandoned, so might another, until at last any action may be deemed to be properly brought because the defendants might throw down their arms and run away.”
“37. …the Defendants and/or the undertakings of which they were a part, together with other undertakings (collectively the ‘Cartelists’) in the period from at least August 1999 to May 2011 entered into agreements and/or arrangements and/or concerted practices by which they or two or more of them… Strictly speaking, because of the “and/or”, Microsoft Mobile’s claim could succeed on the pleading without establishing D1/Sony Europe’s involvement. In argument, however, I was assured by Mr. Beal Q.C. that an averment of participation was being made against D1/Sony Europe specifically. This is borne out by later paragraphs of the pleading. … 63. In summary, beginning no later than 1999, the Cartelists began communicating with each other bilaterally and/or multilaterally with a common goal of cooperating to prevent, restrict or distort competition on the relevant market for Li-ion Batteries. … 174. By reason of the Defendants’ participation in and/or implementation of the Cartel as described hereinabove… … 181. As an intended and/or foreseeable consequence of the conduct set out above, the Defendants and the undertakings of which they formed part caused the Claimant loss and damage…”
“Y, who is out of England, must be either a necessary or proper party to the proceedings. If Y is a proper party it is not also a requirement that he be a necessary party; but if adding Y is likely in practice to achieve no potential advantage for the claimant, it would not ordinarily be a proper case for service out of the jurisdiction. The question whether Y is a proper party to proceedings against X depends on this: supposing both X and Y had been in England, would they both have been proper parties to the proceedings? If they would, and only one of them, X, is in this country, then Y is a proper party and permission may be given to serve him out of the jurisdiction. Y will be a proper party if the claims against X and Y involve one investigation. It is not necessary that the alleged liability of Y be joint and several with that of X.”
“Based on an initial review of the Claimant’s and Nokia’s sales and purchase data, I understand from the Claimant’s economic experts that the Claimant and/or Nokia suffered damage within the jurisdiction as a result of the Defendants’ unlawful participation in the Cartel. (a) In the Cartel Period and the Run-Off Period, Nokia and/or the Claimant purchased 12.1 million units from the First Defendant, which, as set out above, is a company located in the UK and incorporated under English law. (b) Nokia entered into a series of Product Purchase Agreements (“PPAs”) with the Second Defendant (which agreement includes the First Defendant as an affiliated company), Third, Fourth, Fifth and Sixth Defendants. Of these PPAs, the agreements with the Second and First Defendants, and with the Fifth Defendant, are governed by “United Kingdom law”
“The heads set out in Paragraph 3.1 contain various definitional elements. A question which appears important, but which is oddly free of convincing authority, is whether these are to be interpreted by reference to English domestic law, or English rules of private international law, or something else. Suppose the claimant wishes to serve out on the basis ‘the claim is in respect of a contract where the contract was made within the jurisdiction’. Is the question whether there actually was a contract for the claim to be made in respect of answered by reference to English domestic law, or by reference to the rules of English private international law? And is the place where it was made answered by applying the offer and acceptance rules of English domestic law, or the corresponding rules of whichever law is picked out by the rules of private international law, or some other way altogether?”
“Given the settled principles governing the jurisdiction under O.11, there can in my view be no doubt that the plaintiffs’ claims for the negative declarations in question were improperly included in their writs for service on the shipowners in Holland, even though their claims for damages could properly be pursued by means of these writs. It requires no authority that a writ for which leave is sought under O.11 may, like the curate’s egg, be good in part and bad in part, in which case the plaintiffs may not proceed with those claims which are bad…”
“35. Given that the circumstances of the present case are characterised by the consolidation of a number of potential claims for damages brought by the applicant in the main proceedings which had been assigned to the applicant by several undertakings allegedly victims of the Hydrogen Peroxide cartel, it should be pointed out from the outset that the transfer of claims by the initial creditor cannot, by itself, have an impact on the determination of the court having jurisdiction under Article 5(3)… … 65. Only where a party not privy to the original contracting party’s rights and obligations in accordance with national substantive law as established by the application of the rules of private international law of the court seised of the matter could that third party nevertheless be bound by a jurisdiction clause to which it had not agreed…”
“The only potentially relevant factor identified by Mr. Murray is the statement at paragraph 33(a) that “in the Cartel Period and/or the Run-Off Period, Nokia and/or the Claimant purchased 12.1 million units from the First Defendant, which, as set out above, is a company located in the UK and incorporated under English law”
“…the figure of 12.1 million sales is vanishingly small in the context of this claim. The Claimant’s case is that during the alleged infringement period it purchased over three billion units. Even if 12 million units were sold to Nokia in England and Wales during the infringement period…those sales would be less than half of one percent of the sales which are in issue in the case.”
“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the same time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 and 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“The effect is, not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as of right.”
“England and Wales is the proper forum for these proceedings. Where, as in this case, there is a multi-jurisdictional cartel operating globally, there is in principle no unique natural home for any particular litigation. However, as set out above, C has a viable, and substantial, claim against D1 for the entirety of its losses on a joint and several basis which will proceed in this jurisdiction. In the light of that, the Master correctly concluded that the clearly and distinctly more appropriate forum for the rest of the claims against D1’s joint tortfeasors was also England and Wales. That represents the most economic and timely use of resources; it will minimise the risk of conflicting decisions; and it will prevent the unnecessary duplication of costs for the parties. Indeed, if the Ds were acting rationally, rather than strategically, they would agree.”
“14. In the present case, VTB relies upon the words of Robert Goff L.J. in an earlier Court of Appeal case: Cordoba Shipping Co. Ltd v. National State Bank, Elizabeth, New Jersey (The Albaforth) [1984] 2 Lloyd’s Rep. 91, and the acceptance of that case as consistent with The Spiliada by the House of Lords in the later case of Berezovsky v. Michaels [2000] 1 W.L.R. 1004. In The Albaforth [1984] 2 Lloyd’s Rep. 91, 96 Robert Goff LJ deduced from earlier case law that: “where it is held that a court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the court, so having jurisdiction, is the most appropriate court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a court which has jurisdiction on that basis must also be the natural forum for the trial of the action. If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum. Certainly, in the present case, I can see no factors which could displace that conclusion.” 15. In Berezovsky v. Michaels [2000] 1 W.L.R. 1004 a challenge to the consistency of this approach with The Spiliada was rejected by Lord Steyn in a speech with which the other two members of the majority agreed: speaking of a line of authority in which the approach taken in The Albaforth had been followed, he said, at p.1014: “The express or implied supposition in all these decided cases is that the substance of the tort arose within the jurisdiction. In other words the test of substantiality as required by Kroch v. Rossell [1937] 1 All E.R. 725 was in each case satisfied. Counsel for Forbes argued that a prima facie rule that the appropriate jurisdiction is where the tort was committed is inconsistent with The Spiliada [1987] A.C. 460. He said that The Spiliada admits of no presumptions. The context of the two lines of authority must be borne in mind. In The Spiliada the House examined the relevant questions at a high level of generality. The leading judgment of Lord Goff of Chieveley is an essay in synthesis: he explored and explained the coherence of legal principles and provided guidance. Lord Goff of Chieveley did not attempt to examine exhaustively the classes of cases which may arise in practice, notably he did not consider the practical problems associated with libels which cross national borders. On the other hand, the line of authority of which The Albaforth is an example was concerned with practical problems at a much lower level of generality. Those decisions were concerned with the bread and butter issue of the weight of evidence. There is therefore no conflict. Counsel accepted that he could not object to a proposition that the place where in substance the tort arises is a weighty factor pointing to that jurisdiction being the appropriate one. This illustrates the weakness of the argument. The distinction between a prima facie position and treating the same factor as a weighty circumstance pointing in the same direction is rather a fine one. For my part the Albaforth line of authority is well established, tried and tested, and unobjectionable in principle.”” “where it is held that a court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the court, so having jurisdiction, is the most appropriate court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a court which has jurisdiction on that basis must also be the natural forum for the trial of the action. If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum. Certainly, in the present case, I can see no factors which could displace that conclusion.” “The express or implied supposition in all these decided cases is that the substance of the tort arose within the jurisdiction. In other words the test of substantiality as required by Kroch v. Rossell [1937] 1 All E.R. 725 was in each case satisfied. Counsel for Forbes argued that a prima facie rule that the appropriate jurisdiction is where the tort was committed is inconsistent with The Spiliada [1987] A.C. 460. He said that The Spiliada admits of no presumptions. The context of the two lines of authority must be borne in mind. In The Spiliada the House examined the relevant questions at a high level of generality. The leading judgment of Lord Goff of Chieveley is an essay in synthesis: he explored and explained the coherence of legal principles and provided guidance. Lord Goff of Chieveley did not attempt to examine exhaustively the classes of cases which may arise in practice, notably he did not consider the practical problems associated with libels which cross national borders. On the other hand, the line of authority of which The Albaforth is an example was concerned with practical problems at a much lower level of generality. Those decisions were concerned with the bread and butter issue of the weight of evidence. There is therefore no conflict. Counsel accepted that he could not object to a proposition that the place where in substance the tort arises is a weighty factor pointing to that jurisdiction being the appropriate one. This illustrates the weakness of the argument. The distinction between a prima facie position and treating the same factor as a weighty circumstance pointing in the same direction is rather a fine one. For my part the Albaforth line of authority is well established, tried and tested, and unobjectionable in principle.”” b) In his oral submissions, Mr. Beard Q.C. emphasised that the centre of gravity of the torts pleaded by Microsoft Mobile pointed away from England and Wales: Transcript Day 3, pages 423ff. “Without wishing to sound trite, it is important to remember that the mischief of a conspiracy tort, an unlawful means tort, or indeed a breach of Article 101 TFEU, is the coming together of people. If you think about a 101 case where an overcharge is alleged, the allegation is not that the actual price of the goods is inherently unlawful. It is not inherently unlawful to price at 110p rather than a pound. What is unlawful is where people agree who are competitors that the pricing should be at 110p. It is where that agreement is going on, it is where that concerted practice or agreement occurs that is the essence of the tortious behaviour for the purposes of breach of statutory duty that is found at least in English law on the basis of Article 101. We say the same applies in relation to issues of conspiracy, or unlawful means, in the context of these allegations, where the claims are being brought that people got together in these company groups and coordinated their behaviour. Those people were at least primarily, probably almost completely, in Japan and Korea, and possibly China. When we look at the dramatis personae, we see 60 people who are Japanese and Korean. Where the meetings took place, where the communications were: those were in Japan and Korea… We say the answer here, actually the only answer we need to give is not England and Wales. That is the only answer, not England and Wales. We can go further, and say it is Japan and Korea. We do not need to. We just have to say it is not England and Wales…”
“Owusu mandates that any claim, if valid, against Millhouse must be determined here. But that is not a ground for bringing in a defendant if England is an inappropriate forum. It is obvious to me that the primary reason for suing Millhouse, with minimal net assets, is to provide the anchor on which to tether a claim against Mr. Abramovich. Had it been relevant, I would have loosed the chain.” ii) In Pacific International Sports Clubs Ltd v. Soccer Marketing International Ltd[2009] EWHC 1839 (Ch) , Blackburne J. stated: 111. …It follows, therefore, that neither the doctrine of forum non conveniens nor the application “reflexively” of articles of the Judgments Regulation provides grounds for staying the pursuit by Pacific in this jurisdiction of its claims against SMI. Does this mean that, given Pacific’s wish to pursue its claims against SMI in this jurisdiction, this court should allow Pacific to continue to pursue its claims against the other defendants in this jurisdiction notwithstanding that, as against those other defendants, application of the doctrine of forum non conveniens, unaffected in the case of those other defendants by the impact of the Judgments Regulation, indicates that Pacific’s claims against those others should be pursued in Ukraine? 112. I am not persuaded that it does. According to the particulars of claim in this action, SMI is, like the BVI defendants, a relatively minor player in the dispute: it was no more than the means whereby Mr. Surkis held and was able to take control of Dynamo. The principal dispute is undoubtedly between Pacific on the one hand and Mr. Surkis and Mr. Zgursky on the other. To allow the fact that the doctrine of forum non conveniens cannot be applied to SMI to dictate where the dispute as a whole must be tried would be, in my view, to allow the tail to wag the dog. In particular, I see no reason why, given my conclusions in relation to the application of the doctrine of forum non conveniens to the other defendants, I should not stay the action against Mr.Surkis and set aside the permission order, and with it service of the claim form on the BVI defendants, leaving it to Pacific to pursue its dispute with those persons (and SMI if it wishes) in the courts of Ukraine…” iii) In OJSC TNK-BP Holding v. Beppler & Jacobson Ltd[2012] EWHC 3286 (Ch) at [313], Mr. Andrew Sutcliffe, Q.C. sitting as a Deputy High Court Judge stated: “It is necessary to consider the possibility of parallel proceedings in England and Russia. Mr. Kitchener accepts that Owusu v. Jackson [2005] Q.B. 801 prevents this court from declining jurisdiction over the claim against BJUK on forum conveniens grounds. Accordingly, if the claim against this anchor defendant is viable it may continue even if permission to sue the Applicants is refused. The result might be the existence of parallel proceedings in Russia and England. However, as Mr. Kitchener points out, if this is of concern to Holding, the solution is in its own hands. It can join BJUK as a defendant to any Russian proceedings…This is a case where it is important to have regard to Lloyd L.J.’s observation in The Golden Mariner [1990] 2 Lloyd’s Rep. 215 at 222…The fact that Russia is the natural forum means that the claim against BJUK should not dictate the location of trial against the Applicants.”
“44. This application was heard without notice, as is usually the case for an application for permission to serve out. As on any application without notice, the applicant is under a duty to make full and frank disclosure of matters material to the application. That means not only that care needs to be taken in setting out the factual basis for the application, but also that the Tribunal's attention should be drawn to any significant objections to the application that the defendants could reasonably be expected to raise if they were before the Tribunal. The duty does not require disclosure to the same degree as on an application for a without notice injunction, such as a freezing order, where granting the application has immediate and potentially serious consequences for the defendant. The factors relevant to an application to serve out are only those which relate to the limited inquiry the Tribunal carries out in determining whether to grant such permission. Nonetheless, within the limited scope of that inquiry, if the claimant is aware of such factors as might cause the Tribunal to doubt whether permission should be granted, they should be clearly disclosed... 45. In applications before the Tribunal, it will often be more appropriate for such disclosure to be made in a statement accompanying the claim form and similarly attested by a declaration of truth, rather than in the claim form itself. The Tribunal cannot be expected to go through a long claim form or Particulars of Claim teasing out material objections to service out of the jurisdiction. Moreover, since the Tribunal will generally seek to deal with such applications on the papers, compliance with the duty of full and frank disclosure cannot be left to counsel's skeleton argument for a hearing since in most cases there will not be a hearing.”
“76. First, whilst relying on [Gateway (9)(a)], the Claimant failed to point out that it was unable to establish that any significant damage (or indeed any damage at all) had been incurred in England and Wales. Instead, Murray 1 sought to rely on sales of the relevant products made by the First Defendant, without going on to elucidate the critical fact whether those sales were made in England or whether they were made to Nokia entities located elsewhere... 77. Further, the Claimant failed to point out to the Court that, given the inadequacy of its evidence in relation to the place in which damage occurred, the Defendants would have a good argument that [Gateway (9)(a)] was not satisfied. 78. Second, the Claimant failed in its application and evidence to present the position in relation to each individual assignee, and wrongly proceeded on the fundamentally flawed basis that all of the assignees’ claims are to be treated not as separate claims but as if all of the sales had been made to a single entity. The Claimant failed to explain to the Court that the Defendants would have an argument that evidence of loss having been caused to one Nokia entity in England would be insufficient to fulfil [Gateway (9)(a)] in respect of the whole claim.” ii) Secondly, it was contended that Microsoft Mobile had failed to draw to the Master’s attention the range of factors pointing to Japan or Korea as being more appropriate fora. These factors have already been described in paragraphs 189 above. Paragraph 79 of D4/LG Chem’s written submissions stated: “Third, the Claimant failed to draw to the Court’s attention the wealth of factors indicating that Japan and South Korea are much more closely connected to the claim than England. The only discussion of Japan and South Korea as alternative fora was in Murray 1, §50. This (i) made the point that neither of these jurisdictions “is the home jurisdiction of all of the Defendants”, and (ii) sought to minimise the linguistic difficulties in bringing a claim in England. Nowhere has the Claimant drawn to the Court’s attention the factors set out…above and notably that: (a) the pleaded conduct giving rise to the alleged infringement took place entirely (alternatively, almost entirely) in Japan and Korea; (b) the persons alleged by the Claimant to have been involved all appear to be in Japan or Korea; (c) most of the documents are likely to be held in Japan and South Korea; and (d) most of the damage that is alleged to have been caused to the Claimant was not even sustained in the EEA, let alone in England and Wales. Given that this claim does not extend to damage suffered in the United States, most of the loss is likely to have been suffered in Asia.” iii) Thirdly, it was contended that Microsoft Mobile had failed to draw to the Master’s attention that there was a good argument that D1/Sony Europe had only been sued in order to found jurisdiction against the other Defendants. iv) Fourthly, and finally, it was contended that Microsoft Mobile had failed to draw to the Master’s attention the fact that the Defendants were likely to raise as a defence that the claim fell outside the scope of Article 101 TFEU. Paragraph 74 of D4/LG Chem’s written submissions states: “In iiyama v. Schott AG[2016] EWHC 1207 (Ch) , Mann J. recently set aside an order permitting service out of the jurisdiction on the ground inter alia that the claimants had not complied with their duty of full and frank disclosure. That claim was also a cartel damages claim brought mainly against defendants domiciled in Asia in respect of cartel conduct in Asia. Mann J. held that the claimants had failed properly to set out for the court the factual position in relation to purchases of the cartelised product in the EEA and had also failed to draw the court’s attention to the fact that the defendants were likely to raise as a defence that the claim fell outside the territorial scope of Article 101 TFEU…Mann J. held that these omissions were “serious” and went “to the heart of the case”.”
“On the basis of the foregoing review of the authorities, I would summarise the main principles which should guide the court in the exercise of its discretion as follows: (1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial. (2) Notwithstanding that general rule, the court has jurisdiction to continue or re-grant the order. (3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure. (4) The court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction. (5) The court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance. (6) The court can weigh the merits of the plaintiff’s claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff’s case is allowed to undermine the policy objective of the principle. (7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice. (8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence. (9) There are no hard and fast rules as to whether the discretion to continue or re-grant the order should be exercised, and the court should take into account all relevant circumstances.”