“… In terms of a single contact at Amex this should really sit with our product team who are in fact already looking at similar systems to yours (fare iq etc). Next steps would be to set up some time with our VP products so she can compare the various tools she is looking at with yours. It would be interesting if you could also share why yours is different. This is certainly a capability we want and the potential to have it exclusively with you seems a good one. The challenge for many of us is that for the next two months our focus will be on securing and transitioning the business to the new Joint venture so I personally will have very little time which is why I think this is best to sit with our global product team.”
“This Agreement (including any non-contractual obligations arising out of or in connection with the same) shall be governed in all respects by the laws of England without regard to conflict of laws principles, and any cause of action shall only be brought in a court of competent jurisdiction in England. Each party hereby expressly consents to, submits to, and acknowledges the jurisdiction of the courts of England in connection with this Agreement.”
“everyone [at AmEx Europe] has been very focussed on getting to the deal signing stage for our potential joint venture. That was announced last night which is great news and very exciting.”
“Amexco and [Trappit SA] would like to exchange certain information regarding a potential business collaboration which may be considered trade secret, proprietary, confidential and/or sensitive information of each party and/or their respective subsidiaries and affiliates (collectively, “Confidential Information” and further defined below in clause 4). To ensure the protection of such Confidential Information and in consideration of the agreement to exchange information, the parties agree as follows…”
“2. Permitted Use. Each party agrees to use the Confidential Information only for the purpose of evaluating a potential transaction between them. 3. Obligations of Confidentiality. Each party agrees to regard and preserve as confidential, all Confidential Information of the other party… Each party agrees to use the same degree of care that it uses to protect its own Confidential Information from unauthorized disclosure, but in no event less than a reasonable degree of care…In maintaining confidentiality hereunder, each party agrees it shall not, without first obtaining the written consent of the other party, disclose or make available to any person, firm or enterprise, reproduce or transmit, or use (directly or indirectly) for its own benefit or the benefit of others, and Confidential Information of such other party… 4. Confidential Information Definition. “Confidential Information” shall include, but is not limited to, specific information relating to a project or work effort contemplated by the parties, as well as all other information related to either party’s past, present and future plans, businesses, activities, products, services. customers and suppliers… … 11. Intellectual Property and Announcements. Neither party shall acquire a right to use, and may not use without the other party’s prior written consent in each instance, the names, characters, artwork, designs, trade names, trademarks or service marks of the other party in any advertising, publicity, public announcement, marketing, press release, promotion, and/or client list. … 14. Assignment. Neither party may assign or otherwise transfer this Agreement, or any of its rights and obligations hereunder, to any third party without the consent of the other party. … 18. Governing law and jurisdiction. This Agreement (including any non-contractual obligations arising out of or in connection with the same) shall be governed in all respects by the laws of Spain without regard to conflict of law principles. Any dispute or controversy arising in connection with this Agreement shall be submitted before the courts of the city of Madrid, Spain. … 21. Termination. This Agreement will terminate In the earlier of: (a) the execution of a definitive agreement regarding the “potential transaction” referred to in clause 2 which includes confidentiality provisions substantially similar to those contained in this Agreement (a “Definitive Agreement”); (b) written notice given by either party terminating evaluation of the “potential transaction” referred to in clause 2; or (c) the date that is 1 year from the date of this Agreement. Except to the extent superseded by the Definitive Agreement, the rights and obligations of the parties: (i) with respect to Confidential Information that constitutes a “trade secret” (as defined by applicable law) will survive the termination of this Agreement for so long as such Confidential Information remains a trade secret under applicable law; and (ii) with respect to all other Confidential Information will survive the termination of this Agreement for a period of 2 years from termination. The obligations of clause 14 will remain in effect until satisfied. 22. Survival. Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, confidentiality and limitation of liability provisions) shall survive termination or expiration of this Agreement and continue in full force and effect.”
“On the terms and subject to the conditions of the Master Reorganization Agreement… each Business Seller [including AmEx Europe] agrees to sell and transfer to the Business Buyer [GBT UK], and the Business Buyer agrees to purchase and acquire from each Business Seller, all the rights, title, interests in and to the Transferred Assets which are owned or held by such Business Seller, and the Transferred Business shall be considered transferred as a going concern.”
“1.5. To the extent that, at any relevant Completion or Contract Transfer Date (as applicable), any requisite Third Party Consent has not been obtained in relation to the transfer of an Assumed Contract (a “Non-Assignable Contract”), such Non-Assignable Contract will be considered a Delayed Transfer Asset and the provisions of clauses 2.13 to 2.16 of this Agreement shall apply to such Non-Assignable Contract. 1.6. As soon as practicable after the relevant Completion or Contract Transfer Date (as applicable), the Parties shall issue or cause to be issued a notice in a form to be agreed by the Parties to each counterparty to an Assumed Contract (unless the requisite Third Party Consent from such counterparty has previously been obtained) informing them of the transfer of the relevant Assumed Contract by the relevant Contract Transferor to the relevant Contract Transferee.”
“…such… consents… which are necessary… for the conveyance, transfer, assignment, novation, license or subletting in favour of the relevant transferee of any of the Assumed Contracts…”
“To the extent that, as at any relevant Completion, any requisite Third Party Consent has not been obtained in relation to any asset that is to be a Transferred Asset (a “Delayed Transfer Asset”), this Agreement and the applicable Local Agreement shall constitute a transfer, acceptance, assignment and assumption of such Delayed Transfer Asset only to the extent legal and permissible under Law and the terms or conditions applicable to the Delayed Transfer Asset.”
“Notice: This e-mail message has been sent by an employee or contractor of American Express Global Business Travel (“GBT”), a joint venture that is not wholly-owned by American Express Company or any of its subsidiaries (“American Express”). E-mail from GBT employees and contractors may continue to utilize an American Express domain for some period; however American Express is not responsible for the content of this email, which is controlled by GBT. “American Express Global Business Travel”, “American Express” and the American Express Logo are trademarks of American Express and are used by GBT under limited license.”
“TWO. [2MC] transfers to [Trappit SA] all rights to the work called ARPO, that had previously been transferred to the former by Mr Roberto Martín Escribano and Mr Alvaro Javier Morgan Guadamuz, and the latter accepts the transfer. By way of example, the rights transferred are those of reproduction, distribution, public communication and transformation, together with any type of exploitation. The abovementioned transfer of rights is on an exclusive basis with a worldwide territorial scope and for the maximum time allowed by law….”
“ONE. Transfer on an exclusive basis [Trappit SA] transfers, on an exclusive basis, all the rights to exploit the work entitled “ARPO” to [Trappit Tec], which accepts the transfer on the terms laid down in this agreement… TWO. Rights transferred and methods of exploitation The rights to exploit the work that are transferred are those of reproduction, distribution, public communication and transformation, in any of the means of exploitation that exist and are known as at today’s date… 28. FOUR. Geographical scope of the transfer 29. The transfer of the exploitation rights is worldwide in scope…”
“…Furthermore, [Joanna MacLeod] was the person who in performing the deceit to which they were submitting the plaintiffs, signed a confidentiality agreement with them. All of this aiming at having them believe that American Express was going to respect the ownership rights of the ARPO system, which belonged to the plaintiffs… TWO - Defendants Ms Cliffe and Mr Glenn, in agreement with the rest of the defendants listed below, devised the following plan. In order to fraudulently take possession of the ARPO tool, they would propose to the plaintiffs to enter into a collaboration agreement to use and develop the ARPO system for the purchase of plane tickets… As will be explained later what the defendants actually did was to appropriate the system for themselves… FOUR - On the initiative AMERICAN EXPRESS and following several meetings in which, among other things, the plaintiffs gave technical explanations on the ARPO program… Therefore, a way of working was established, for the future agreement, at three levels (AMEX, TRAPPIT, BANCO DE SANTANDER, which is a client of the first two) to make an actual pilot test, and a period of three weeks was agreed upon to analyze the results… Trappit’s representatives delivered to the people in charge of American Express everything pertaining to the ARPO system, and delivered to them all of the required data and elements whereby it was possible to learn in full what the ARPO system consisted of and how it worked. The people at Trappit delivered the program in good faith and with several confidentiality agreements signed, and assuming that American Express knew that it was a product that was legally registered. (Appended document No. 6: Copies of the NDAs signed by Trappit and AMEX and Appended document No. 7: Handing over and delivery of the full ARPO system to American Express)… Even though the defendants were fully aware that the ARPO system belonged exclusively to Trappit and that it was duly registered, they took possession of it, studied it, analyzed it and without the plaintiffs’ knowledge or consent started to exploit it, offering it with a different name to the clients of American Express… All of it was a ruse of the defendants to prevent the plaintiffs from exploiting their system so that it would be them who, to the detriment of TRAPPIT, would be using TRAPPIT’s program.”
“Nevertheless, it cannot be ignored that the defendants claimed that the "LASTFARE" program was developed by personnel belonging to [GBT Spain]… FIVE. The Plenary ruling relating to jurisdiction… applies the principle of ubiquity to determine territorial jurisdiction, according to which: "A crime is considered to have been committed in all the jurisdictions in which any element thereof has taken place. Accordingly, the court in any of said jurisdictions that firstly initiates proceedings shall be the competent court to judge the case". SIX. As a result, given that the plagiarism of the program allegedly took place in Madrid, the Madrid court has jurisdiction to determine whether a crime against intellectual property was committed and, as the declaration of a lack of jurisdiction was the reason why the interlocutory orders of November 6 and 12, 2015 were not sent, they must be confirmed…”
“In accordance with the order handed down by Madrid Provincial Appellate Court, it is appropriate for the letters rogatory to be issued. However, in the light of the appeal that was partly upheld, as is clearly apparent from the operative part of the decision, it is necessary to limit the subject-matter of this investigation to the events which took place in Spain, namely the development of the Last Fare application … As regards the taking of statements from Jaime de Carvajal Escalada, there are no grounds for acceding to the petition since the events which occurred in the UK and the US are not covered by the present proceedings … which are confined, in contrast, to the question whether, in Spain, the intellectual property rights of the complainant were infringed by the creation in Spain of the Last Fare application.”
“In the opinion of this examining magistrate, according to the court-appointed expert report carried out in the terms required by the Provincial Court of Madrid, it can be clearly concluded that the LASTFARE program is not a plagiary of ARPO… Therefore, in light of the results of the expert report, pursuant to the reasoning explained in this ruling, the proceedings are declared as provisionally filed pursuant to article 641.1 LECrim [the Spanish Criminal Procedure Code] and, therefore, the case closed and the letters rogatory claimed by the criminal complainant [are] denied.”
“…it is not acceptable that, now, the complainant states that this information is irrelevant and attempts to modify the object of the investigation, alleging the existence of alleged crimes of discovery and disclosure of secrets and fraud, by the defendants allegedly appropriating the ARPO program, with the defendants using certain tricks and subterfuges that the appellant relates in its brief and which lack the slightest evidential support as said assertions are based on mere assumptions and conjectures. There is no indication whatsoever that GBT SPAIN had access to the ARPO program, nor that it was issued with it at any time. There are no indications that the crime under investigation has been committed by the defendants..”
“(1) If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise…”
“64. In a case such as that in the main proceedings, the court before which the action is brought must, nevertheless, ensure that the clauses at issue actually bind the applicant before examining the requirements of form laid down in article 23 of Regulation No 44/2001. As the court has already made clear, a jurisdiction clause incorporated in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract. In order for a third party to rely on such a clause it is, in principle, necessary that the third party has given his consent to that effect: the Refcomp SpA case, para 29. 65. Only where a party not privy to the original contract had succeeded to an 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 seized of the matter could that third party nevertheless be bound by a jurisdiction clause to which it had not agreed: Coreck Maritime GmbH v Handelsveem BV (Case C387/98)[2000] ECR I-9337 , paras 24, 25, 30. … 67. In that regard, it is for the national court to interpret the clause conferring jurisdiction invoked before it in order to determine which disputes fall within its scope: Powell Duffrynplc v Petereit (Case C-214/89 [1992] ECR I-1745 , para 37, and in Benincasa v Dentalkit Srl (Case C-269/95 ) [1997] ECR I3767; [1998] All ER (EC) 135, para 31. 68. A jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into. The purpose of that requirement is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which may arise out of its relationship with the other party to the contract and stem from a relationship other than that in connection with which the agreement conferring jurisdiction was made: the Powell Duffryn case, para 31.”
“(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”
“45. The role of foreign law experts in relation to issues of contractual interpretation is a limited one. It is confined to identifying what the rules of interpretation are. 46. It is not the role of such experts to express opinions as to what the contract means. That is the task of the English court, having regard to the foreign law rules of interpretation. 47. This is well established law and is clearly set out and summarised by Lord Collins in Vizcaya Partners Ltd v Picard[2016] UKPC 5 ; [2016] 1 CLC 806 at [60]: '60. … Where the applicable law of the contract is foreign law, questions of interpretation are governed by the applicable law. In such a case the role of the expert is not to give evidence as to what the contract means. The role is "to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules": King vBrandywine[2005] EWCA Civ 235 , [2005] 1 CLC 283, para 68; Dicey, paras 9-019 and 32-144 ("the expert proves the foreign rules of construction, and the court, in the light of these rules, determines the meaning of the contract"). 48. To similar effect is the judgment of Longmore LJ in Deutsche Bank AG v Savona[2018] EWCA Civ 1740 ; [2018] 2 CLC 483] at [15]: '15. … In a case in which the main, let alone the only, issue is as to the construction of a foreign jurisdiction clause as opposed to an English jurisdiction clause, the only relevance of evidence of foreign law is to inform the court of any difference of law in relation to the principles of construction, see King v Brandywine [2005] 1 CLC 283, para 68 per Waller LJ and VizcayaPartners Ltd v Picard [2016] 1 CLC 806 para 60 per Lord Collins. It is not to have competing arguments as to how the highest court in the foreign jurisdiction would decide the question whether a claim brought in England would (or would not or would also) fall within the foreign jurisdiction clause. The task of the English court is merely to inform itself of any relevant different principles of construction there might be in the foreign law and, armed with such information, look at both jurisdiction clauses and decide whether the English claim falls within the English clause. That should be a comparatively straightforward exercise.'”
“Article 1281 If the terms of a contract are clear and do not leave any doubt as to the intention of the contracting parties, they shall abide by the literal meaning of its clauses. If the words seem contrary to the evident intention of the contracting parties, the latter shall prevail over the former. Article 1282 In order to judge the intention of the contracting parties, their acts at the time of and subsequent to the contract shall be mainly taken into account. Article 1283 However general the terms of the contract are, they shall not be deemed to comprise objects and cases different from those in respect of which the interested parties proposed to contract. Article 1284 If any clause of the contract admits several meanings, it shall be construed to have the meaning most suitable for it to be effective. Article 1285 Clauses in contracts shall be construed in connection with each other, attributing to any doubtful clauses the meaning resulting from the whole. Article 1286 Words which may have different meanings shall be construed in the meaning which is most in accordance with the nature and subject matter of the contract. Article 1287 Uses or customs of the country shall be taken into account to construe any ambiguities in contracts, standing in for the omission of clauses which are usually set forth therein. Article 1288 The construction of obscure clauses in the contract shall not favour the party who caused the obscurity.”
“1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32. 3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”
“It is said that the object of the provisions in [the equivalent of Section 9 of Brussels I Recast] “is to prevent conflicting decisions on identical or almost identical issues arising between the same parties in different courts of the Contracting States”
“Although the dismissal of the actions on30 September 2016 was described as "provisional" rather than final, that word needs to be approached with some caution. The word may simply reflect the fact that a dissatisfied party had three days from the date of notification of the ruling in which to ask the court to reconsider the ruling, or five days in which to make a direct appeal against it. There is no evidence that anyone did either of those things. Alternatively, the dismissal might be "provisional" in the sense that it would be open to the investigating judge to re-open the case if fresh evidence subsequently came to light. That is consistent with the documents being archived.”
“59. … the resolution of the issue of lis alibi pendens does not depend on expert evidence so much as on my assessment of the factual situation in Spain. The documents upon which Ice Mountain seeks to rely indicate that the Spanish court concluded its preliminary investigations in September 2016 and decided that there is no basis for a prosecution. It dismissed the cause and archived the files. There is no evidence that the "provisional" dismissal has been reversed in substance, or that the judge has changed her mind about whether there is enough evidence to prosecute (let alone identified the defendant to prospective criminal charges). Therefore, there is no ongoing criminal action leading to trial, to which any civil action would attach.”
“the different doctrines… have different requirements, but they shoot at the same target – that of ensuring that nobody should be vexed twice in respect of one and the same cause…”
“A foreign judgment can give rise to issue estoppel: Carl ZeissStiftung v. Rayner & Keeler Ltd (No. 2) [1967] 1 A.C. 853, 918B, 927G, 967B (Lords Reid, Hodson and Wilberforce). The conditions which must be satisfied in such a case are: (1) the judgment relied on as creating the estoppel must be (a) by a court of competent jurisdiction; (b) final and conclusive; and (c) on the merits; (2) the parties (or their privies) must be the same in both sets of proceedings; (3) there must be a clear determination of the issue by the judgment – it must not be merely collateral or obiter comment; (4) the issue in the later action must be the same as the issue decided by the judgment in the earlier proceedings: see The Sennar (No. 2) [1985] 1 W.L.R. 490, 499 (H.L.).” see The Sennar (No. 2) [1985] 1 W.L.R. 490, 499 (H.L.).”
“… If it veers on absurd to recognise estoppel as arising from a foreign judgment if the foreign law would not regard such a judgment as being final, it must be equally absurd to estop an English court from hearing a particular issue where a foreign court would not consider that issue to be binding…”
“There must be a clear decision on the issue in question by the foreign court: Good Challenger Navegante SA v. Mineralexportimport SA [2004] 1 Lloyds Rep. 67, at [54] (C.A.). The English court must be cautious before deciding that the foreign court made a clear decision on the relevant issue because English courts are unfamiliar with modes of procedure in many foreign countries, and it may be difficult to see whether a particular issue has been decided or that a decision was a basis of a foreign judgment and not merely collateral or obiter: CarlZeiss (No. 2), supra, at 918; Good Challenger, supra, at [54].”
“Termination of the criminal proceedings does not carry the civil action with it, unless the termination arises from a final decision stating that the act from which the civil action may have arisen did not exist. In all other cases, the person entitled to take civil action may do so, before the appropriate civil jurisdiction and via the civil route, against whoever is under the obligation to reinstate the thing, repair the damage or compensate for the damages suffered.”
“[I]t is an abuse to bring vexatious proceedings, i.e. two or more sets of proceedings in respect of the same subject matter which amount to harassment of the defendant in order to make them fight the same battle more than once with the attendant multiplication of costs, time and stress. In this context it is immaterial whether the proceedings are brought concurrently or serially.”
“47. … the Henderson principle is concerned with protecting the integrity of the cause of action and issue estoppel defences and preventing them from being deliberately or inadvertently circumvented by a party which did not advance an argument in England which would otherwise have created such an estoppel. 48. The base requirement is that the party in question ought to have advanced the relevant argument if it was one which " properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time ". However, while there is an element of a "could and should" test about this (reflected also in the passage from Lord Bingham above and also in Virgin Atlantic at [17]), it is not a simple or a broad "could and should" test. 49. It was common ground that the burden is on the party relying on the principle to show that it is engaged. It is common ground, too, that it is necessary to approach the question of abuse of process with caution. As Lowry CJ emphasised in Sloan v Shaw [1982] NI 393 (CA) at p.397: "The entire corpus of authority on issue estoppel is based on the theory that it is not an abuse of process to relitigate a point where any of the… requirements of the doctrine is missing ".”
“bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all”