CA-2025-001926 - [2025] EWCA Civ 1383

Jurisdictional conflict

As I have observed in many judgments concerning FRAND issues, the ETSI IPR Policy, while valuable in many ways, has a flaw in that it does not provide for a global dispute resolution mechanism for determining FRAND disputes. In the absence of such a mechanism, or an ad hoc agreement to arbitrate, the possibility of jurisdictional conflict is inescapable.

In this regard the parties and the judge referred to what I said in Nokia Technologies OY v OnePlus Technology (Shenzhen) Co Ltd [2022] EWCA Civ 947, [2023] FSR 11 (“Nokia v OPPO”):

But what is to happen if the courts of more than one country are seised with proceedings concerning the SEPs in question? If more than one country’s courts proceed to determine the terms of a global FRAND licence, there is an obvious risk of inconsistent decisions (not to mention a huge waste of legal costs). The only way to avoid the risk of inconsistent decisions is to ensure that only one court determines the terms of the global FRAND licence. As a matter of principle, one might expect this to be the court first seised of the dispute, with its determination being binding on the parties (by way of res judicata) in any other proceedings. This has three potential consequences. The first is a rush by each party to the court to establish jurisdiction in a forum which is perceived to be favourable to that party’s position. The second is an application by one party for an anti-suit injunction to restrain the other party from commencing or pursuing proceedings in a different jurisdiction to that considered favourable by the applicant party. The third is an application by the respondent party in the forum sought to be enjoined for an anti-anti-suit injunction restraining the first party from making or pursuing its application for the anti-suit injunction in the other forum. All of these consequences have manifested themselves in disputes between patentees and implementers in recent years.

The only sure way to avoid these problems is to use a supranational dispute resolution procedure, and the only supranational procedure currently available is arbitration. If the parties do not agree to arbitration, however, the national courts must deal with the resulting jurisdictional disputes as best they can. Because there are no bespoke jurisdictional rules applicable to such disputes, still less any internationally agreed ones, national courts must apply their ordinary jurisdictional rules. In doing so national courts must have due regard to comity (that is, the need to respect the jurisdictions and judicial systems of other nations), but national courts cannot solve the problems inherent in the present system of resolving SEP/FRAND disputes.”

I will return to these points below.