TMI Blog2008 (4) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... Moser Baer India Ltd. - filed by the defendant No. 1 at The Hague, The Netherlands, as well as from continuing with the third party claim and counter claim filed by the defendant No. 1 against, inter alia, the plaintiff in the complaint [Civ.A. No. 07-3668 (DWF/AJB)] filed by Imation Corporation before the Minnesota District Court, USA. Briefly put, the plaintiff prays for an anti-suit injunction against the defendants (more particularly against defendant No. 1) on the strength of interim orders passed by this Court in the plaintiff's earlier suit [CS(OS) 2026/2006] and on the pleas of forum non-conveniens and that the proceeding before the foreign courts are vexatious and oppressive to the plaintiff. The defendants have resisted this application on inter alias the plea that this Court lacks territorial jurisdiction and that the conditions precedent for the grant of an anti-suit injunction as determined by the Supreme Court in Modi Entertainment Network v. W.S.G. Cricket Pte Ltd. [2003]1SCR480 have not been fulfilled. 2. The plaintiff manufactures and sells optical and magnetic data storage media products. The defendant Nos. 2 3 are alleged to be the Indian arms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration (including its subsidiary) was a licensee under the CLA, it was represented by Imation Corporation that no royalty was payable to defendant No. 1 in respect of sales by the plaintiff to it. Such sales were allegedly reported to the defendant No. 1, who, it is alleged, did not object initially. Subsequently, the defendant No. 1 construed it as a breach of the 6 DPLAs and issued six default notices to the plaintiff on 18.10.2006 threatening cancellation of the DPLAs. Imation Corporation and the plaintiff were of the view that the defendant No. 1 had no right to request for royalties in respect of sales made by the plaintiff to Imation Corporation, the latter be a licensee under the CLA. 4. This led to the filing of two separate actions, one each by the plaintiff and Imation Corporation. The plaintiff filed a suit [CS(OS) 2026/06] in this Court seeking a declaration and injunction against the defendants herein in respect of the said six default notices issued by the defendant No. 1. Imation Corporation filed a declaratory judgment action [Civ.A. No. 07-3668 (DWF/AJB)] against defendant No. 1 before the Minnesota District Court, USA. The plaintiff was not initially joined a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all sales of Philips patented CD and DVD discs to Imation Corporation and its subsidiaries including Global Data Media FZ-LLC. Thereafter, the present suit seeking an anti-suit injunction was filed by the plaintiff. 6. The law relating to anti-suit injunction has been spelt out by the Supreme Court in Modi Entertainment Network (supra), a decision relied upon by counsel on both sides. After considering Oil and Natural Gas Commission v. Western Co. of North America [1987]1SCR1024 ; British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries (48)ELT481(SC) ; SNI Aerospatiale v. Lee Kui Jak (1987) 3 All ER 510; Spiliada Maritime Corporation v. Cansulex Ltd. (1986) 3 All ER 843; Airbus Industrie GIE v. Patel (1998) 2 All ER 257; British Aerospace Plc v. Dee Howard Co. (1993) 1 LR 368; Donohue v. Armco Inc. (2002) 1 All ER 749; SABAH Shipyard (Pakistan) Ltd v. Islamic Republic of Pakistan and Karachi Electrics Supply Corporation Ltd. 2002 EWCA Civ 1643 (CA), the Supreme Court held: 24. From the above discussion the following principles emerge: (1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum. (6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens. (7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same. 7. The concepts of anti-suit injunction and forum non conveniens require some examination. An anti-suit injunction is granted by a court preventing the parties before it from instituting or continuing with proceedings in another Court. On the other hand, the doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forum non conveniens. After considering Sim v. Robinow (1892) 19 K.B. 665, Tehrani v. Secy. of State for the Home Department [2006] UKHL 47, Gulf Oil Corporation v. Gilbert 330 U.S. 501, I had concluded that the doctrine of forum non conveniens can only be invoked where the court deciding not to exercise jurisdiction, has jurisdiction in the strict sense. 9. The plaintiff's prayer for an anti-suit injunction has to be examined in the backdrop of the aforesaid legal principles. It has been contended by the plaintiff that the proceedings at the Hague and before the District Court of Minnesota, USA are vexatious and oppressive and that the Court at the Hague and at Minnesota are both forum non conveniens. It has also been contended that although the plaintiff has presence in 82 countries and is a world leader in the manufacture of CD-R, the proceedings at the Hague and Minnesota would entail that the plaintiff has to incur avoidable financial expenses. It is also contended that most of the witnesses which are required to depose on behalf of the plaintiff would be from India and this Court is already seized of the issue relating to the validity of the default notices issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. A suit, such as the present, would not lie. On the other hand, if the expression 'precipitate action' did not include the filing of other proceedings by the defendants then, in any event, the present suit seeking anti-suit injunction, cannot be founded on the basis of the undertaking/ statement recorded on 03.11.2006 in CS(OS) 2026/2006. Thus, whichever way the matter is looked at, the statement / undertaking made by the counsel for the defendants on 03.11.2006 is irrelevant for the purposes of considering the present application and suit for anti-suit injunction. 11. This takes us to the discussion of whether this Court has jurisdiction in the matter. It has already been noted above that each of the DPLAs, which govern the relationship between the plaintiff and the defendants, contains a jurisdiction clause. The first part of the jurisdiction clause states that the agreements would be governed by and construed in accordance with the laws of the Netherlands. The second part of the clause stipulates that the disputes between the parties shall be submitted to the competent courts of the Hague, the Netherlands. There is a proviso to this and that is that in case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er courts. But this does not mean that a clause which does not contain the words like alone , only , sole or exclusive would not, under any circumstance, amount to an ouster clause or grant exclusivity of jurisdiction to a particular court or courts. In fact, the Supreme Court noted that even without such words, in appropriate cases, the maxim expressio unius est exclusio alterius - expression of one is the exclusion of another - may be applied. The jurisdiction clause in the present case clearly stipulates that the disputes between the parties in connection with the DPLAs 'shall' be submitted to the competent courts of the Hague, the Netherlands. This is coupled with the proviso that in case the defendant No. 1 (Philips) is the plaintiff, it may at its sole discretion submit such a dispute either to the competent courts in the venue of the plaintiff's registered office or to any of the competent courts in the Territory as defined under the agreements. 12. Reading the proviso along with the main portion of the clause, it is apparent that in cases where the licensee (Moser Baer India Limited) is the plaintiff, the dispute can be submitted only to the courts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like. Examining the said observations of the Supreme Court in the light of the facts and circumstances of the present case, I do not find any such exceptional case made out by the plaintiff for the grant of an anti-suit injunction. The non-grant of an anti-suit injunction would not relieve the defendants of the burden of the contract. Moreover, there is nothing to show that it is impossible for the plaintiff to prosecute its case in the court of choice because of the reason that essence of the jurisdiction of the Court of choice does not exist any more. No case of vis major or force majeure and the like has been pleaded by the plaintiff. On the contrary, it is an admitted position, as noted above, that the plaintiff has presence in 82 countries and also has a full-fledged office in the Netherlands. In paragraph 24 (6) of the Supreme Court decision in Modi Entertainment Network (supra) it is observed that a party to the contract containing a jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court. In such international contracts, the parties may agree to have their disputes resolved by a foreign court which may be a neutral court or a court of choice creating exclusive or non-exclusive jurisdiction in it although such court may not otherwise have jurisdiction. This settled position eliminates any argument that may be advanced claiming that the courts of the Hague, the Netherlands, do not have jurisdiction and the parties could not by agreement confer jurisdiction on it. 15. Before concluding, I must also deal with the arguments advanced on behalf of the plaintiff that the defendants and, particularly, defendant No. 1 cannot be permitted to raise the issue of jurisdiction when it had submitted to the jurisdiction of this Court in CS(OS) 2026/2006. It has been mentioned above that on account of the settlement talks following the standstill agreement between Imation Corporation and the defendant No. 1, the latter moved an application for extension of time to file a written statement. In that application, it was indicated that the defendants p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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