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CJEU confirms arbitral award in international patent license dispute

by David Perkins on 26 Jul 2016

As discussed in an earlier post, the Court of Justice of the European Union confirmed that its function is not to review findings of an Arbitrator or his interpretation of a Patent License Agreement: Genentech, Inc. v Hoechst GmbH/ Sanofi Aventis GmbH, Case C-567/14 (Judgment of the Court: 7 July, 2016).

Commenting on this decision, David Perkins finds that the position remains: international arbitral awards must be compatible with EU law and, consequently, it may be necessary to apply EU law when interpreting and applying the contract in issue.

On the facts of the Genentech case, Art.101(1) TFEU does not preclude imposing on a licensee an obligation to continue paying royalties for the use of patented technology for the entire period in which the agreement is in effect, notwithstanding the revocation or non-infringement of a licensed patent. As noted, this is subject to the proviso that the licensee is freely able to terminate the agreement by giving reasonable notice.

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Why parties to arbitration are resisting greater court involvement

by Philip McMullan on 19 Jul 2016

The UK’s Lord Chief Justice raised eyebrows in the legal profession in March, 2016 when he suggested that the growth of arbitration was hindering the development of common law. Lord Thomas of Cwmgiedd said that the UK took something of a wrong turning in 1979 and 1996 when it brought forward measures to make arbitration more attractive to the international market. The changes in the seventies and nineties focused on limiting the number of appeals which would come out of the arbitration process to be heard by a judge, thereby giving more finality and certainty to arbitration awards. But the unintended consequence, according to Lord Thomas, has been that a lack of commercial cases reaching the courts has hindered the development of common law.

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What are the main behaviours that tribunals dislike?

by Philip McMullan on 04 Jul 2016

Setting out its Guidelines on Party Representation in International Arbitration in October 2013, the International Bar Association (IBA) neatly summed up the difficulties facing tribunals. Counsel from different jurisdictions are "subject to, or informed by, diverse and potentially conflicting rules and norms", which the body was concerned could potentially "undermine the fundamental fairness and integrity of international arbitral proceedings". 

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No annulment of arbitral award in patent license dispute

by David Perkins on 19 May 2016

On a reference from the Cour d’Appel de Paris, A.G. Wathelet upholds the primacy of an arbitral award as compatible with Art.101 TFEU in Genentech, Inc. v Hoechst GmbH / Sanofi-Aventis GmbH, Case C-567/14 (Opinion of Advocate General Wathelet: 17 March 2016).

David Perkins finds that for the Advocate Ceneral, the issue turned on the terms of the License Agreement between Hoechst/Sanofi-Aventis and Genetech, and there was nothing in that Agreement which gave rise to infringement of Art.101 TFEU. Nevertheless, if the Opinion is followed by the Court, it is clear that – as a matter of general effect – there is power for a National Court of an EU Member State dealing with a request to set aside or refuse enforcement of an arbitral award to examine whether the Agreement and the effect of the arbitral award infringe Arts.101 and/or 102 TFEU and are, consequently, contrary to public policy.

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A European perspective on the arbitration of patent disputes

by David Perkins on 29 Mar 2016

Despite increasing harmonisation of patent law - for example, the adoption by the US of the "First to File" rule in the America Invents Act - there remains no global system, other than arbitration, which provides a single solution to multi-jurisdiction patent disputes. Nor is there such a system on the horizon. While the establishment of the UPC in Europe may eventually provide some improvement for patent disputes in the 28 EU Member States, that new Federal System brings with it the several uncertainties identified above and is, of course, limited in its jurisdiction.

With increased use of international arbitration in this sector, provided it continues to deliver sound, effective decisions within a reasonable time frame and at a reasonable cost, it is to be expected that it will more and more become the procedure of choice for parties in multi-country patent disputes.

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ADR added to financial list?

by Antony Collins on 06 Aug 2015

Regulatory action against banks has been a principal theme in financial services litigation in recent years. The most notorious regulatory finding against UK banks concerned misselling of payment protection insurance (PPI), which according to the Financial Conduct Authority (FCA), has cost lenders more than £20bn since January 2011

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Business conciliation services for small to medium-sized businesses

by Antony Collins on 31 Jul 2015

The UK government has unveiled yet another ADR initiative for small and medium-sized enterprises (SMEs). The latest plan from the Department for Business, Innovation and Skills (BIS) is for a Small Business Conciliation Service intended to “help small businesses settle their problems with large corporations” and to “avoid expensive legal costs and maintain business relationships by reaching mutually satisfactory agreements”.

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Defamation and libel arbitration: Too little, too late?

by Antony Collins on 24 Jun 2015

In a bid to widen access to justice for those with complaints against the UK press, the Independent Press Standards Organisation (IPSO) launched a three-month consultation on 16 June over proposals to introduce arbitration as a quicker and more effective method of redress. According to IPSO, the consultation is seeking comment on a host of issues, including whether arbitration should be mandatory; whether awards should be capped; how legal costs should be recovered; what sort of timescale should the process aim to follow; and whether conciliation should also take place.

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The long goodbye: Is mediation evolving or regressing?

by Matthew Rushton on 17 Jun 2015

Resistance to joint sessions is growing on both sides of the Atlantic. So, is mediation evolving or regressing?

Market resistance to the use of joint sessions is best illustrated by data from a survey of JAMS neutrals conducted in April 2015.

76% of JAMS’s 300-plus neutrals responded, and the data show both a decline in the use of joint sessions, and a clear discrepancy between East and West Coasts. 80% of neutrals surveyed used joint sessions when they first started mediating – ranging from four to 20 years ago. In 2015, only 45% regularly use joint sessions.

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Construction arbitration: Geography lessons

by Antony Collins on 26 May 2015

With anticipated global population growth of 40% between 2010 and 2030, the world’s interconnected and increasingly urban population is driving unprecedented demand for infrastructure. Delivering the required transport, energy and housing infrastructure in the swiftest and least disruptive manner therefore offers a competitive advantage. Achieving harmony between governments, financiers, developers and subcontractors over the delivery and development of major construction projects requires careful planning and, even then, disputes are inevitable.

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