'We Love London!': Big Pharma Choose English Law And Courts To Resolve Foreign Dispute

Earlier in 2017, an eminent US Mid-West IP lawyer explained to me why he considered the English Courts (whether part of the UPC or not) were in a strong position to deal with global disputes (and IP particularly). First, we have specialist IP judges. Second, because a considerable number of IP contracts had exclusive English law and jurisdiction clauses. His point was that this gave clients a degree of certainty about the speed and quality of judgments. In the modern commercial world, waiting for 2 or more years for trial let alone judgment is not acceptable, and could potentially irreparably harm a business.

It was no surprise to me, then, that the decision in Teva Pharma-Produtos Farmaceuticos Lda v Astrazeneca-Produtos Farmaceuticos Lda [2017] EWCA Civ 2135 (handed down on 21st December 2017) continued this growing trend of multi-nationals choosing to litigate in English Courts, and in relation both to foreign and English law contracts. It followed on from the decision in Merck KGaA v Merck Sharp & Dohme Corp [2017] EWCA Civ 1834, and was emulated in a decision handed down the same day as the Teva decision in The Black & Decker Corporation v Dvize bv [2017] EWHC 3387 (Pat) (in which I and the team at Venner Shipley acted). In these cases, issues of German contract law construction, and that of Maryland law, were considered.

"Westminster Abbey, the Tower Big Ben, the rosy red cheeks of the little children...."

In Teva, the appellant was the Portuguese company in the Teva Group, and the first and second respondents were the Portuguese arm of the AstraZeneca Group (and licensee), and the Japanese proprietor of the patent in issue (EP0521471 - the 'Patent' - which related to rosuvastatin an inhibitor of cholesterol production). The Patent expired on 30 June 2012. However, AstraZeneca eventually obtained in November 2013, a SPC which was to expire on 3 July 2017.

In January 2012, Teva obtained marketing authorisation from the Portuguese authority, Infarmed, for their generic rosuvastatin product. AstraZeneca commenced proceedings in the Portuguese Administrative Court against Infarmed (including Teva) on 31 July 2012. By the end of January 2013, AstraZeneca considered Teva would launch their generic product imminently, and sought a preliminary injunction under the SPC. Teva launched their product in Portugal on 1 February 2013. Following correspondence between the parties, a Settlement Agreement dated 25 February 2013 was entered into in...