INTRODUCTION
The specie of injunctive relief includes grant of injunction to a plaintiff against any vexatious or oppressive legal proceedings resorted to by the defendant in a foreign jurisdiction. As noted by the High Court of Delhi in the judgment being discussed in this article, the law on the aspect of anti-suit injunctions, restraining parties from proceeding with litigations in foreign jurisdictions has been examined and crystallized, primarily in three pronouncements of the hon'ble Supreme Court in the cases of O.N.G.C. v. Western Co. of North America1, Modi Entertainment Network2 and Dinesh Singh Thakur3.
The High Court of Delhi was called upon in the case of Interdigital Technology Corporation and Ors. v/s Xiaomi Corporation and Ors.4, to show indulgence in a proceeding seeking grant of anti-enforcement injunction against a foreign judgment passed in a foreign jurisdiction. While allowing the grant of injunction against enforcement of the foreign judgment, the High Court considered the principles for grant of anti-suit injunction, as settled primarily by the hon'ble Supreme Court in the aforesaid three judgments. The High Court made elaborate deliberation on the relevance of the "principles of comity" with respect to grant of anti-suit injunction.
The judgment of Delhi High Court stands affirmed, as the parties proceeded to settle their issues without agitating against the judgment. This article endeavours to highlight the considerations found favourable by the High Court in granting the injunctive relief.
BRIEF FACTUAL BACKDROP OF THE CASE BEFORE DELHI HIGH COURT
The plaintiff filed a suit before the Delhi High Court alleging infringement by the defendants, of certain Standard Essential Patents (SEPs), held by the plaintiff and registered in their name. According to the plaintiffs, the defendants manufacture cellular handsets, compliant with 3G and 4G standards which required, for their operation, technology contained in the SEPs held by the plaintiffs. The defendants were using the SEPs as licensee, on grant of license by the plaintiffs, at rates which are fair, reasonable and non-discriminatory (FRAND). The plaintiff thereby sought for an injunction in the event the defendants are not willing to obtain licences, from the plaintiffs, for use of the said SEPs, at FRAND royalty rates.
Prior to the plaintiffs approaching Delhi High Court, the defendants filed an SEP royalty rate-setting suit, before the court at Wuhan in China, seeking fixation of a global FRAND royalty rate, on the basis of which defendant could obtain licence from the plaintiffs, to operate and use the technology covered by the entire patent portfolio of the plaintiffs.
Summons were issued by Delhi High Court on 04.10.2020. Defendant then hastily proceeded to file an anti-suit injunction application before the Wuhan Court seeking restraint, against the plaintiffs, from prosecuting the suit at Delhi High Court. On the said application of defendant, the Wuhan Court passed an order on 23.09.2020, disposing the application and granting anti-suit injunction against plaintiff from prosecuting the suit before Delhi High Court. The defendant, however, suppressed from plaintiff the fact of its filing the anti-suit injunction proceedings before Wuhan Court as well as the order dated 23.09.2020. On this count, the court noted that the plaintiffs were denied an opportunity by defendant to seek any restraint against the defendants' proceedings, or even from contesting the same in Wuhan.
On becoming aware of the order dated 23.09.2020 of Wuhan Court, the plaintiff filed an application in the pending suit before Delhi High Court, seeking restraint against defendants from enforcing the Order of 23.09.2020 of Wuhan Court, which was allowed by Delhi High Court by the judgment under reference.
CONSIDERATIONS FOR GRANT OF ANTI-ENFORCEMENT INJUNCTION
The court while considering the law for grant of 'anti enforcement injunction', observed that the tests for grant of 'anti-suit injunction' are not entirely irrelevant, where 'anti-enforcement injunction' is sought, for the simple reason that the enforcement is itself an order passed in the anti-suit injunction application filed before the Wuhan Court. In this context the court observed that, even though the proceedings filed by defendant seeking grant of anti-suit injunction has been disposed-off at Wuhan Court, the scope of examination before Delhi High Court, has to extend to assess whether a case for grant of "anti-anti-suit injunction", restraining the defendants from prosecuting the anti-suit injunction application filed by them before the Wuhan Court, could be said to have existed, had the plaintiffs approached this court for such relief at that stage. Pertinently, in addition to test of prima facie case, balance of convenience and irreparable loss, as made out from the plaint, the High Court also took note of the principles laid down by apex court in various judgments that anti-suit injunctions are ordinarily to be granted where the foreign proceedings are "oppressive or vexatious", or where declining injunction would result in defeating the ends of justice and perpetuating injustice.
The High Court noted that it is not disputed, even by the defendants that the present suit, seeking injunction against infringement of the plaintiff's Indian suit patents, could not have been maintained before any court outside India. Nor do the defendants dispute the territorial jurisdiction of Delhi Court, to adjudicate and decide the present suit. As against this, the order dated 23.09.2020 of Wuhan Court expressly prohibits exercise, by the plaintiffs, of their right to seek legal redressal, in accordance with the laws of India, against perceived infringement of the suit patents.
In that regard the High Court observed that the order dated 23.09.2020, falls into error in opining that the plaintiffs had, by initiating the present proceedings before this court, sought to exclude the jurisdiction of the Wuhan Court. In fact, it is Wuhan Court which has, by its order, sought to exclude the jurisdiction of Delhi High Court to adjudicate on the list brought before it by the plaintiff which no other court is empowered to adjudicate. Pertinently, the proceedings arising out of the anti-suit injunction application filed by the defendants before Wuhan Court were found to be prima facie oppressive in nature.
The court rejected the stand of defendant on the pretext of overlap of issue between, or the possibility of passing conflicting orders by, Delhi and Wuhan Court. The High Court observed that mere overlap of issues is not regarded, either by the law in this country or in any other jurisdiction, as sufficient to grant anti suit injunction. The court observed that the claim for grant of injunction on the basis of 'overlap of issue' would arise when such overlap causes the foreign proceedings as "oppressive or vexatious". In the facts of the present case, the court observed that, while the Wuhan Court may not have been justified in granting anti-suit injunction, whereas the High Court of Delhi would certainly be justified in injuncting the defendants from enforcing, against the plaintiffs, the order dated 23rd September, 2020 of the Wuhan Court.
'COMITY' AS A CONSIDERATION FOR GRANT OF ANTI-SUIT INJUNCTION AND ANTI-ENFORCEMENT INJUNCTION
With respect to grant of anti-enforcement injunction, the High Court also considered the views of Singapore Court of Appeal5 with respect to grant of 'anti-enforcement injunction' and differed from the views laid down by the Singapore Court of Appeal. The High Court of Delhi observed that in the case for grant of an anti-suit injunction the scope of interference with foreign proceedings is greater, as a running proceeding is sought to be halted by the grant of anti-suit injunction. However, in the case of grant of anti-enforcement injunction, the foreign court rendering the judgment being sought to be enforced, becomes functus officio, thereby entailing no interference in any pending/ongoing proceedings before the foreign court.
The High Court further observed that in the context of proceedings arising from intellectual property rights, the proceedings under the concerned legislation are maintainable only before the concerned jurisdictional national court, and therefore, injuncting a litigant from availing such recourse before the jurisdictional national court would amount to assault on the right of such litigant. In fact, the grant of such injunction by a foreign court restraining a litigant to avail the only remedy available under the legislation would be oppressive or vexatious. Concluding its views on the applicability of principle of comity in the matter of grant of anti-suit injunction, the High Court observed as follows: "'Comity', as a concept, was grating to the ear, when it proceeded from a court of justice6. Where the proceeding or order, of which injunction was sought, was oppressive to the applicant seeking injunction, comity was of relatively little importance, as a factor telling against grant of such injunction. Even if grant of injunction, in such circumstances, was likely to offend the foreign Court, that consideration could not operate as a factor inhibiting against such grant7. Considerations of comity were, moreover, subject to the condition that the foreign law, or the foreign proceeding or order was not offensive to domestic public policy8 or customary international law. Comity, in any event, was a two-way street."
The High Court while summing up the considerations in favour of granting anti-enforcement injunction, observed that the grant of such injunction is justified for enforcement of intellectual property right in relation to the proceedings arising from the legislation excluding the jurisdiction of any other court, except the one prescribed in the said legislation. In fact, the anti-suit injunction granted by foreign court injuncting the plaintiff from availing relief before the jurisdictional court, would invariably be vexatious and oppressive. Further, the grant of anti-suit injunction against approaching the jurisdictional court, on the basis of overlap of issue between proceedings in foreign court and jurisdictional court, would be justified only if such overlap of issue causes the proceedings before jurisdictional court to be oppressive or vexatious. The court also negated the argument that grant of anti-suit injunction by foreign court was justified to avoid any conflicting decision of foreign court and jurisdictional court. In fact, the High Court went ahead and observed that grant of anti-suit injunction by the foreign court restraining from availing the remedy before the jurisdictional court under the given legislation, was in serious conflict with the principles of comity of courts.
CONCLUSION
The views of Delhi High Court with respect to the relevance of 'principle of comity' in the matter of grant of anti-suit injunction and/or anti-enforcement injunction appears quite progressive and in line with the demand of commercial expediency. Keeping in view that the case before Delhi High Court was within the confines of Patent Act, restricting the court's jurisdiction only to those in India to the exclusion of any other court of foreign jurisdiction, the oppressive nature of foreign judgment of Wuhan Court was quite glaring in restraining the plaintiff from resorting to the recourse available only in Indian Court. As against this specific position, it would be interesting to see, whether the views of Delhi High Court on the 'principle of comity', would persuade the grant of anti-suit/ enforcement injunctions, in relation to a subject matter wherein the jurisdiction of foreign court is not excluded by any statute of India, as against the relief being sought in Indian Court?
Footnotes
1. (1987) 1 SCC 496
2. (2003) 4 SCC 341
3. (2018) 17 SCC 12
4. CS(COMM) 295/2020
5. Sun Travels & Tours (2019) SGCA 10
6. Satya MANU/SC/0212/1974 : (1975) 1 SCC 120
7. SAS Institute MANU/UKWA/0235/2020 : (2020) EWCA Civ 599
8. Ecobank MANU/UKWA/0638/2015 : (2016) 1 WLR 2231, SAS Institute MANU/UKWA/0235/2020 : (2020) EWCA Civ 599
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
