Last year the MARQUES Dispute Resolution Team posted the results of a questionnaire with information on preliminary injunctions in 18 key jurisdictions.
For each jurisdiction, answers are provided to questions such as: What types of injunctions are available? Are any available on an ex parte basis? Which factors will courts take into account in deciding whether to grant a preliminary injunction? Can damages/an account of profits be awarded in addition to an injunction? What is the procedure and timescale for seeking a preliminary injunction? Is there a right of appeal? And are costs recoverable?
The jurisdictions covered are Brazil, China-Hong Kong, Croatia, Denmark, France, Germany, Greece, Mexico, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, the UK and the US.
Patricia McGovern of DFMG Solicitors in Ireland is a member of the Dispute Resolution Team. She answered some questions about the publication.
How did the project come about?
It was one of our first projects when the Dispute Resolution Team was formed. A lot of us on the Team had experience in seeking interlocutory relief in different countries or being involved in multi-jurisdiction litigation, and we thought this was an area where useful information could be provided.
We realised that everything is slightly different in each country, and in some cases radically different. So we thought it would be useful to both corporate and expert members to provide a quick reference that people could look at. It is not a substitute for local advice but an initial go-to when the problem arises so you can interact better with local counsel.
It is something we all get from time to time: a client says their trade mark is being infringed and asks whether they can get an injunction in certain countries, and whether it is better to go for one country first. This questionnaire gives you a quick indication before seeking local advice on your strategy.
How did you choose the countries?
It was partly pragmatic: we looked at the countries represented by the members of the Team. But we extended it to look at countries where we often encounter issues, and major markets such as the US and China.
We may consider adding more countries in the future. And, if things change in the existing countries, we can easily update it.
What surprised you about the responses?
It is fascinating to see all the differences that exist in the world. On particular questions, things you take for granted in one country aren’t available elsewhere. For example, in Ireland we give the court an undertaking as to damages; in other words the plaintiff may have to pay damages to the defendant if it is subsequently decided at the full hearing that a preliminary injunction was granted without grounds. Not all jurisdictions have that. There are also a variety of rules on whether costs are recoverable and the extent of costs recoverable.
Another difference is that countries such as Germany have the concept of a protective writ to assist you in defending against a potential ex parte injunction. And the Dutch courts are prepared to grant extraterritorial injunctions. In China, in general there are very limited circumstances in which you can get an injunction.
Even within Europe, we have very significant differences between the civil law jurisdictions on the continent and the common law jurisdictions of the UK and Ireland, which are important to consider.
How did you decide the questions?
We spent some time on the questionnaire, reviewing it and populating it. That led to us amending certain questions and rephrasing some of them and then circulating the questionnaire further.
If anyone out there thinks it would be of benefit to add any more countries, they can contact us and we can consider adding more countries to the spreadsheet. It might be interesting to include India, Russia, Australia, some of the Middle East countries or any countries where clients feel there is most need to get an injunction. The invitation is open to anyone who encounters these issues.
We would also welcome feedback on this format: is there a question we didn’t include? We can always go back to the contributors and get more information if necessary.
Are there plans for any similar projects?
The Team has a lot of other projects in the pipeline, including a session for the Annual Conference in Dublin. We’re looking in general at dispute resolution issues in a broad sense, and anyone who would like to know more can contact any of the Team members – we represent quite a few jurisdictions between us.
The Preliminary Injunctions guide was distributed to 2018 Annual Conference delegates on a USB stick, and MARQUES members can also download it from the Dispute Resolution Team page on the MARQUES website.
For full access to all the MARQUES Team resources, become a member. Members also benefit from a discount on registration for the Annual Conference, taking place in Dublin in September 2019.