Anti-suit Injunctions Research Articles

From ‘Anti-Suit Injunction’ to ‘Anti-Anti-Suit Injunction’, Where would this Journey End? Part -II

While courts have traditionally been mindful of the territorial nature of patent rights and thus reluctant to exceed the scope of their jurisdiction, this second installment of the yearlong series, inter alia will try to examine certain global scenarios and conditions that courts consider while granting ASI and A2SI and their application in disputes concerning SEPs, further certain measures would be suggested which the authorsthink might come handy to stop this global race for jurisdiction and how inculcating the same in practice would give the due respect to the national courts of concerned jurisdiction along with incentivizing the parties to focus on key concern issues behind every SEP dispute i.e. the suitable FRAND licensing terms.  The present research will also try to convince that such ‘Anti-Anti-Anti-Anti……….Suits Injunction’ saga benefits none, as the same incentivizes a global race to find a court in favorable jurisdiction rather than focusing over the Licensing Negotiations.&nbsp

The Application and System Construction of Anti-Suit Injunction in Foreign-Related Civil Litigation in China

The Application and System Construction of Anti-Suit Injunction in Foreign-Related Civil Litigation in China

2022년 개정 국제사법에 따른 국제재판관할합의의 제문제

The Act on Private International Law (APIL), which came into effect in July 2001, provided for general principles on international jurisdiction in its Article 2, and for rules of international jurisdiction protective of socio-economically weaker parties, such as consumers and employees, in its Articles 27 and 28. Although the Supreme Court applied Article 2 of the APIL, it disregarded paragraph 2 and applied only paragraph 1 and drew the conclusion it desired through a ‘case-by-case analysis’, thereby undermining legal stability. To improve this situation, the Ministry of Justice promoted the revision of the APIL, and finally, on January 4, 2022, the Amended APIL (the “Amended APIL”) containing detailed rules of international jurisdiction was promulgated. Among various issues regarding the rules of international jurisdiction included in the Amended APIL, those surrounding the jurisdiction agreement (Article 8) are dealt with in the present article, focusing on the changes brought by the Amended APIL. The Amended APIL introduced Article 8 reflecting the contents of the Choice of Court Convention (especially Article 6) of the Hague Conference on Private International Law (the “Convention”), which came into effect on October 10, 2015. Article 8 of the Amended APIL sets out the admissibility requirements (paragraph 1), formal validity (paragraph 2), presumption of exclusiveness (paragraph 3), independence of jurisdiction clause (paragraph 4), and the effect of an exclusive jurisdiction agreement in favor of foreign courts (paragraph 5), and unlike other articles, it governs not only cases where Korea has international jurisdiction but also cases where a foreign court has jurisdiction (however, paragraph 5 applies only to agreements on exclusive jurisdiction in favor of foreign courts). In particular, the law governing the validity of the jurisdiction agreement is specified as “the law of the country having international jurisdiction according to the jurisdiction agreement (including the choice of law rules)”, which is also a reflection of the position taken by the Convention. The order of discussion is as follows: first, the importance of international jurisdiction agreements and an overview of jurisdiction conferred by agreement (Chapter II), Second, types of international jurisdiction agreements (Chapter III), Third, law applicable to jurisdiction agreements (Chapter IV), Fourth, admissibility requirements of the jurisdiction agreement (Chapter V), Fifth, formal validity of jurisdiction agreement (Chapter VI), Sixth, effect of jurisdiction agreement (Chapter VII), Seventh, violation of exclusive jurisdiction agreement and an anti-suit injunction (Chapter VIII), and Eighth, special issues on the international jurisdiction agreement based on contract terms and conditions in B2B transactions (Chapter IX). Since the Amended APIL has partly adopted the position of the Convention, Korea needs to consider whether to accede to the Convention. Particular attention will be needed to identify ways in which jurisdiction agreements excessively excluding Korea’s international jurisdiction can be controlled properly. In addition, following the Google case, which recently attracted the attention of Korean lawyers and where the choice of court was effected by a jurisdiction clause in the contract terms and conditions, it is necessary to further review the issues surrounding a jurisdiction agreement based on the contract terms and conditions, and in the same vein consider amending the General Terms and Conditions Act of Korea.

The Use and Abuse of Anti-Suit Injunctions in SEP Litigation: Is There a Way Forward?

Abstract Cross-border litigation over standard essential patents (SEPs) entered a new phase when the English courts decided in Unwired Planet v Huawei that they have the power to set the terms of a global license within the context of national patent infringement proceedings. Unwired Planet appears to have unleashed a global race to the bottom and a race to the courthouse, with litigants racing to seize their preferred forum to set global rates while trying to prevent their opponents from bringing proceedings elsewhere through ‘anti-suit injunctions’, a type of relief traditionally granted by common law jurisdictions but now increasingly by civil law jurisdictions such as China. Yet this is rarely the end of the matter, with litigants applying for anti-anti-suit injunctions or even anti-anti-anti-suit injunctions. The purpose of this paper is to explore the new realities in SEP litigation post-Unwired Planet, with a focus on the use of anti-suit injunctions and the corresponding turf war between national courts. After discussing the legal test for granting such relief in various legal systems, the paper discusses the worrying proliferation of anti-suit injunctions across major jurisdictions, noting how this trend wastes judicial resources and may undermine international comity. It considers that in the absence of some form of international coordination, a satisfactory solution is unlikely to emerge in the short term. As a first step, it proposes that governments consider establishing ‘best practices’ for SEP licensing dispute resolution, including for jurisdictional issues such as the scope of licenses fashioned by national courts.

The Concept and Application of Anti Suit Injunction in Civil Proceedings of European Union Member States and Lithuania

This article analyzes the concept, origins and application of anti suit injunction. The author examines possibilities of applying anti suit injunction in the case law of the Court of Justice of the European Union and in the case law of individual Member States – Germany and France. After evaluating the examples of foreign court practice, a legal assessment of a possibility to apply anti suit injunction in Lithuanian court practice is presented.

The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation

In the past two years, antisuit injunctions (ASIs) and subsequent legal proceedings associated with standard-essential patents (SEPs) subject to fair, reasonable, and nondiscriminatory (FRAND) commitments have proliferated in multiple jurisdictions. This phenomenon reveals not only the transnational nature of technical standards and FRAND-encumbered SEPs but also the jurisdictional tension between different national courts. This Article explains the emergence of ASIs in FRAND scenarios and recent developments in six jurisdictions with major interests in standard development and adoption. Countries have developed different approaches to ASIs based on their own domestic rules and interests. We believe that to promote technical compatibility and international comity, it is necessary to facilitate legal compatibility between jurisdictions at the policy level. Currently, courts in multiple jurisdictions are competing to grant ASIs and anti-anti-suit injunctions (AASIs), leading to fragmented decisions and significant costs for global standardization. We propose to include an exclusive forum selection clause in the policy documents of standard-setting organizations (SSOs) to reduce undesirable transaction costs stemming from ASIs and subsequent legal actions. Our proposal is more realistic and cost-effective than others concerning FRAND dispute resolution.

Analysis of the Construction of Chinese Anti-Suit Injunctions about SEPs

With the development of Chinese science and technology careers, there is an increasing number of Chinese telecommunicating enterprises going abroad. With territorial and international characteristics, the SEPs (Standard Essential Patents), represented by wireless telecommunicating techniques, have become the key subject of numerous parallel international lawsuits. The countries operating the Common law system have been using anti-suit injunctions to solve the problems of international parallel lawsuits, and Chinese courts also attempted to solve these problems by using anti-suit injunctions, however, which were assaulted by foreign courts immediately. Although deeply influenced by the Civil law system, Chinese courts do have the fundamental right to issue anti-suit injunctions about SEPs. In consideration of the international comity, issuing anti-suit injunctions also needs to satisfy the form and real conditions.

Russian “Anti-Suit Injunction” to Proceedings in Foreign Arbitration Tribunal

The paper describes a new legal remedy against foreign arbitration tribunals in the face of sanctions imposed against Russian people, briefly discloses its origins and application abroad, the first judicial practice. The author, based on the analysis of foreign and Russian literature, judicial practice, deduces basic features of anti-suit injunction. Particular attention is paid to the fact in issue stipulated in Article 248.2 of the Arbitration Procedural Code of the Russian Federation. The paper provides a rationale for the optional nature of unenforceability of arbitration agreements.

China's Practice of Anti-Suit Injunctions in SEP Litigation: Transplant or False Friend?

China's Practice of Anti-Suit Injunctions in SEP Litigation: Transplant or False Friend?

A Study on the Determination of the Applicable Law in the UK when there is no Designation of the Applicable Law in the Arbitration Agreement

Purpose The purpose of this study aims to analyze the determination of the governing law in the UK when there is no designation of the governing law in the arbitration agreement in Enca v. Chubb. Design/Methodology/Approach In order to analyze Enca v. Chubb, this study adopts a literature analysis that analyzes various precedents on the determination of the governing law. Findings The UK Supreme Court determined the law governing the underlying contract by applying the closest connection test. Since there was no choice of law governing the contract, the law governing the arbitration agreement had to be determined by applying the closest connection test, and in that regard, London, as the seat of arbitration, was considered a close connection in that determination. Accordingly, English law was determined as the law governing the arbitration agreement, and although the UK Supreme Court adopted different reasoning, it upheld the anti-suit injunction passed by the UK Court of Appeal. Research Implications The Supreme Court’s decision provides much-needed clarification regarding the English legal approach to determining the governing law of an arbitration agreement. Although the majority ultimately upheld the Court of Appeal’s decision, it did so by a taking a different route and affirmed the choice-of-law approach previously set forth by authorities. The Supreme Court also displayed remarkable sensitivity to the provisions of the New York Convention, and demonstrated admirable receptivity to international authorities, with both the majority and dissents relying on an expansive range of international commentary and judicial decisions

Delhi High Court unbalances the seesaw of ‘fair play’ and ‘trade secret protection’: an analysis of Interdigital ‘v’. Xiaomi

The year 2020 witnessed a tussle between an Indian and a Chinese court owing to the fair, reasonable and non-discriminatory (FRAND) licensing litigation between InterDigital (a company headquartered in the USA) and Xiaomi (a company headquartered in China). On 3 June 2020, Xiaomi initiated a suit at the Wuhan Intermediate People’s Court (Wuhan Court) seeking to determine royalty rates for numerous 3G and 4G standard essential patents (SEPs) owned by InterDigital in accordance with FRAND.1 Subsequently, InterDigital filed an infringement suit at the Delhi High Court (DHC) in respect of five of its Indian SEPs2 and three HEVC (High Efficiency Video Coding) video compression standards3 against Xiaomi.4 The Wuhan Court, by its order dated 23 September 2020, issued an anti-suit injunction (ASI) against InterDigital and proscribed them to seek an injunction against Xiaomi in the DHC. The Wuhan Court denied reconsidering its order. ASIs have been common in SEP proceedings as they reduce the expenses and avoid conflicting decisions in parallel jurisdictions.5

Chronology of Practice: Chinese Practice in Private International Law in 2020

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Anti-Suit Injunctions, FRAND Policies and the Conflict between Overlapping Jurisdictions

Abstract Numerous courts worldwide consider themselves competent to determine the FRAND compliance of global SEP license agreements and to set worldwide FRAND rates. A court deciding a FRAND case involving a global FRAND rate may issue an injunction which prohibits the filing or enforcement of an action in another jurisdiction (anti-suit injunction, hereinafter ‘ASI’). The parties litigating in the courts of another country may request this court to enjoin the filing or execution of the ASI – (anti-anti-suit injunction, hereinafter ‘AASI’). This article argues that the extraterritorial effects of both ASIs and AASIs may unduly impede court proceedings. However, ASIs and AASIs may in certain cases legitimately protect the interests that sovereign states have in undisturbed court proceedings. Self-restraint should be exercised because each ASI/AASI contains the risk of escalation. The article gives guidelines as to under which conditions ASIs/AASIs may be issued and accepted by the courts. It also aims to raise awareness among policymakers so that internationally binding rules which ease the conflicts may be implemented.

Anti-suit injunctions in patent litigation

The article examines anti-suit injunctions and their use in patent disputes. The article traces back the origins of anti-suit injunctions in the United Kingdom and discusses the situations where they can be granted. Then, it examines anti-suit injunctions in patent disputes and presents a case study. The article argues that the current patent system involving essential patents should be reviewed, in order to prevent the proliferation of injunctions issued by courts in different jurisdictions aimed at keeping their ability to judge. In the article we propose a suggestion for reviewing the system.

Anti-suit injunctions for standard-essential patents: the emerging gap in international patent enforcement

The unprecedented success of standardization in the field of wireless telecommunications, with the development of 2 G, 3 G, 4 G and—currently—5G standards, has engendered a market for standards, and standard-compliant products and equipment of global proportions.1 Cooperation between technology developers and contributors to standard development organizations (SDOs) on the one side, and users of standards on the other, for the development of innovative international standards has, however, also entailed disputes regarding the licensing of standard-essential patents (SEPs). Of particular importance in SEP-litigation is the issue of which licensing terms can be viewed as fair, reasonable and non-discriminatory (FRAND). Because patents are territorial rights and major technology contributors hold SEPs in various jurisdictions, it is not uncommon—in case a FRAND outcome is not reached through bilateral negotiations—for FRAND disputes to result in lawsuits being filed in several jurisdictions. In patent infringement actions, national courts routinely review the FRAND-conformity of the conduct of both parties in negotiations before awarding the remedy of injunctive relief.2 Adding to that, the contractual nature of the FRAND commitment provided by SEP-holders to SDOs may give parties to a FRAND dispute cause of action for a declaratory judgment that a given licensing offer is, or is not, FRAND.3 Hence, a situation of overlapping jurisdiction may arise in international FRAND disputes.

Article 5 of the Model Law: Protector of the Arbitral Process?

The question of judicial intervention remains highly significant in international commercial arbitration. Article 5 of the Model Law was included in the text both to identify those matters in which intervention is permitted and to define the nature and manner of such intervention. While Article 5 has been largely effective in regulating judicial intervention in matters expressly governed by the Model Law, the issue of abuse of process raised by the presence of concurrent court and arbitration proceedings has been more contentious. This article contends that this issue should also fall within the scope of the Model Law as a matter concerning court intervention in arbitral jurisdiction. While Article 5 does not directly apply to foreign-seated arbitrations, the policies of limited court intervention and respect for arbitral jurisdiction should still be influential. arbitration, judicial intervention, UNCITRAL Model Law, Article 5, abuse of process, anti-suit injunction, anti-arbitration injunction

Will China's New Anti-Suit Injunctions Shift the Balance of Global Frand Litigation?

By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. Second, it prohibits InterDigital from seeking a determination of a global FRAND rate for its 3G/4G patents anywhere in the world. In view of these two recent cases, China has clearly joined the international race to be the jurisdiction of choice for determining FRAND royalty rates in global disputes involving standard-essential patents.

Brief of International Intellectual Property Law Professors as Amici Curiae in Support of Neither Party - Ericsson v. Samsung

This brief seeks to draw to the Court’s attention historical, practical, and policy matters pertaining to technical standardization and dispute resolution that bear on the arguments made on appeal by Samsung and Ericsson, including by providing context on the use of anti-suit injunctions (ASIs) and anti-anti-suit injunctions (AASIs) in litigation involving global portfolios of standards-essential patents (SEPs) that are encumbered by “fair, reasonable, and non-discriminatory” (FRAND) licensing commitments.

Arbitration and the Brussels I Regulation – Before and After Brexit

This article deals with the effect of the Brussels I Regulation on arbitration. This Regulation no longer applies in the UK, but the British Government has applied to join the Lugano Convention, which contains similar provisions. So the article also discusses the position under Lugano, paying particular attention to the differences between the two instruments. The main focus is on the problems that arise when the same dispute is subject to both arbitration and litigation. Possible mechanisms to resolve these problems – such as antisuit injunctions – are considered. The article also discusses other questions, such as freezing orders in support of arbitration.

Anti-Suit Injunctions and Jurisdictional Competition In Global FRAND Litigation: The Case For Judicial Restraint

The proliferation of international jurisdictional conflicts and competing “anti-suit injunctions” in litigation over the licensing of standards-essential patents has raised concerns among policy makers in the United States, Europe and China. This article suggests that national courts temporarily “stand down” from assessing global “fair, reasonable and nondiscriminatory” (FRAND) royalty rates while international bodies develop a more comprehensive, efficient and transparent methodology for resolving issues around FRAND licensing.