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19/20 Exam with answers
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19/20 Exam with answers
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First sit-December 2019/2020Question 1
In 2007 Pharmaceutical Company X, registered and established in Lausanne (Switzerland)
entered into a contractual relationship with drug stores in each EU Member State. Due to a
rise in elderly population, health care is getting more and more expensive. From 2012 to 2014
some drugstores decided to produce expensive medication 'in house' with a view to avoiding
huge costs. By doing so, however, they infringed on industrial property rights of
Pharmaceutical Company X.
Pharmaceutical Company X is determined to take action. A standard contract clause binding
the company and all drugstores reads:
'All conflicts between the signatories (Pharmaceutical Company X and all drug stores
established in any EU Member State) shall be adjudicated either via institutional arbitration
under the auspice of the NAI (Netherlands Arbitration Institute) in Rotterdam, the
Netherlands, or in the District Court of Amsterdam (Netherlands).'
Pharmaceutical Company X commences arbitration in Rotterdam (NAI).
(a) Acting in their capacity of respondent some drugstores fight the arbitration clause for
being 'pathological', and that it would be for the Amsterdam District Court only to decide
on this matter. Is this a correct view? (3 points)
(a) This Q contains two elements:
- 'Pathological clause' is a clause which is not unequivocal and clear.
Is the statement made here correct?
Negative: optional choice (recall the Madrid CA case) 1.5
- Statement: ...and it is 'only for a district court to decide on this matter'
Negative: according to the 'competence-competence' principle adhered to in most legal
orders arbitral tribunals (may) autonomously decide whether or not they shall accept
competence 1.5
(b) The drugstores furthermore claim that the conflict referred to under (a) affects the choice
of court related provision of article 25 of the Recast and that the NAI should lodge a
preliminary question in the Court of Justice of the EU (CJEU). Please give your comment to
this claim (3 points)
(b) The NAI should lodge a preliminary question...
- The NAI, however, is not a 'court' of a sovereign state in the traditional meaning, allowed to
lodge preliminary questions in the CJEU 1.5
- Neither does the NAI comply with requirements as formulated in CJEU Merck - Canada
criteria (arbiters operating as quasi court judges, on the basis of mandatory rather than
voluntary proceedings) 1.5
(c) Twelve years ago, Pharmaceutical Company X allegedly was a client of one of the
arbitrators, at that time acting in her capacity as lawyer. Would it be possible to fight the
composition of the arbitration panel, and which law would be applicable to solve this matter?
(2 points)
, (c) Two elements are raised: is it possible to fight the composition of the Tribunal, and
according to which law?
- Dispute concerns the 'impartiality' of one of the arbitrators (Artt. 12 and 13 UNCITRAL
Model Laws) 1
- To be answered on the basis of the lex fori arbitri 1
(d) Suppose the NAI arbitration panel would be competent to adjudicate the conflict between
Pharmaceutical Company X and the drugstores infringing on the industrial property rights of
the former. Suppose, furthermore, that the drugstores take the view that the claim of
Pharmaceutical Company X is overdue (expired): which law would apply to that question? (2
points)
(d) '...infringing on the industrial property rights. Suppose, furthermore, that the drugstores
take the view that the claim of Pharmaceutical Company X is overdue (expired): explain
which law would apply to that question.'
So we must in particular focus on the argument that the claim is overdue (expired).
To reach a proper answer the following matters must be unraveled here:
- Limitation statute, however at least potentially speaking not linked to contractual but to tort
claims (arising, after all, from infringement of property rights) 1
- Further, according to literature (Moses), limitation statutes are looked upon in different
manner: they can be characterized as either being of a procedural law nature (lex fori arbitri
applying), or of a substantive law nature (either of a contractual or tort law nature). 1
Question 2
Vendor Agricultural Products PLC., established in Ireland, produces and sells harvest
machines. Clients from all over the world purchase their reputed machines. One of these
clients is a Mexican agricultural firm. So far this firm did not fulfil payment of 200.000 Euro
for the delivery of four tomato harvest machines.
Vendor Agricultural Products PLC. now plans to take action against the Mexican agricultural
firm in the District Court of Dublin (Ireland).
(a) Presupposing this option would be open to Agricultural Products Plc. under Irish civil
procedural law: would the court be allowed to assume jurisdiction under EU law? (4 points)
(a) Long armed statute, country where plaintiff resides (Ireland), not where the defendant
resides (Mexico). Would Irish court be allowed to assume jurisdiction under EU law?
- Scope EU Reg. 1215/2012 (or: Recast): substantive (art. 1) and temporal (art. 66):
confirmed. 1
- Formal scope: for jurisdiction read art. 4 (negative, as defendant resides outside Recast
territory). 1
However are EU MS not yet prohibited to enact a forum actoris competence (i.e. jurisdiction
based on the plaintiff's residence in their territory, be it that EU MS must notify the European
Commission in such case (art. 6). 2
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