By an arbitration claim form dated 12 January 2022 the claimant seeks recognition and enforcement of an arbitral award issued on 11 October 2021.
The award was made in the Netherlands by an arbitral tribunal in a Dutch-seated ICC arbitration pursuant to an arbitration agreement contained in the parties' written Collaboration Agreement concluded on 19 July 2012 and amended on 19 December 2014 ("the CA").
The award uses certain defined capitalised terms which I shall adopt unless otherwise indicated.
The award is a New York Convention ("NYC") award.
The application for enforcement is brought under section 101 of the Arbitration Act 1996. The claim form also refers to section 66 but the claimant confirmed that the application was made under section 101.
The dispositive part of the award is contained in Section X. It required the defendant, in the event that the claimant exercised an option to purchase, to transfer to the claimant certain trade marks, regulatory authorisations and certain information and documents relating to specified pharmaceutical products marketed in the UK and Ireland.
Specifically, ¶X.3.a defined the defendant's transfer obligations in the event, as happened, that the claimant elected "to purchase full ownership of the Trade Marks of the Collaboration Products and the Marketing Authorisations of the Richter Products" in accordance with ¶X.2. The Trade Marks ("the TMs") and associated Marketing Authorisations ("the MAs") relate to branded generic oral contraceptives distributed in the UK and Ireland ("the Collaboration Products"). Most are manufactured by the defendant and delivered to the claimant ("Richter Products"); a limited number are made by other manufacturers and delivered to the claimant ("Non-Richter Products").
Award ¶X.3 required the defendant to transfer and provide to the claimant (a) the TMs, (b) the MAs, (c) the full Registration Dossiers, and (d) certain information or documents to be transferred by means of the Registration Dossiers or otherwise. For convenience the term "the Registration Dossiers" is used below to refer to both (c) and (d). There was a 45 day deadline from the date of exercise of the option for these steps to take place.
There were further orders contained in award ¶X.5-6 concerning other elements of the parties' relationships.
The 45 day deadline for the asset transfer and business acquisition in award ¶X.3.a ended on Sunday 5 December 2021. The claimant provided transfer documents and tendered payment of the purchase price (£9.6m) before the deadline. The defendant returned the funds and disputed that it was required to make the transfers. It raised concerns about the confidentiality of the information required to be provided to the claimant under the award and contended that it was entitled under the terms of the award to the protection of further confidentiality terms.
At the hearing before me the focus of the claimant's application was the enforcement of award ¶X.3. The claimant said that the other elements of Section X could be addressed later.
The claim form also seeks specific mandatory relief against the defendant requiring it to take steps to transfer the TMs, MAs and the Registration Dossiers as referred to in ¶X.3 of the award.
The defendant contested the application on three main grounds: (a) that the application for enforcement should be adjourned under section 103(5) of the 1996 Act pending the defendant's application to set aside the award in Amsterdam as the curial court; (b) the court should in any event refuse to enforce the award because ¶X.3 consists solely of declarations and/or prescriptive orders that are too vague for enforcement by the English court; and (c) that the court should not grant the relief sought by the claimant because this relief seeks to modify the terms of the award. The defendant also contended specifically that the court should decline to grant mandatory relief (save possibly in relation to the English TMs and MAs) since there were insufficient connections with this jurisdiction.
The claimant contends that the defendant is seeking to obstruct and delay the business acquisition in order to further its own commercial position and is preventing the claimant from receiving and exploiting vital business assets to which it is entitled. It contends that the defendant is acting tactically and is seeking to stall to prepare to compete with the claimant once the separation has been consummated. It also contends that the defendant is seeking to pressurise it into giving up its rights to the TMs and associated rights.
The defendant denies that it is behaving tactically. It contends that it has made a genuine and substantial challenge to the award by its proceedings in the curial seat; that it has valuable proprietary know-how which will be lost or damaged if it is required to hand it over to the claimant and its suppliers. It denies that it is trying to stall to prepare to compete with the claimant in the UK and Ireland or to pressurise the claimant commercially. It accepts that it does intend to compete with the claimant once the relationship is finally severed but says that it has been preparing to do this for some years and is already ready to start competing, so there is no need for it to buy more time.