Summary
The claimant, Skype, was an internet telephony company domiciled in Luxembourg. The defendant, Joltid, was a company incorporated in the Virgin Islands. The parties entered into a software licence agreement. Skype was granted a world-wide licence to use a compiled object form (machine-readable) of the Global Index Software. (There was no agreement for the source code which was a human-readable form of the software.) The licensing agreement contained an English exclusive jurisdiction clause.
On 12th March 2009, Joltid purported to terminate the agreement on the ground that, in breach of Software agreement, Skype had used and accessed the source code. On the same day, Skype began proceedings in England seeking declaration that the purported termination was invalid, and that the licensing agreement between the parties remains in force.
On 16th September 2009, Joltid started proceedings in the US District Court for the Northern District of California.
Skype claimed that the US proceedings were brought in breach of the exclusive jurisdiction agreement, and sought anti-suit injunction. The English court assumed jurisdiction, refusing to stay its proceedings and ordering an anti-suit injunction. Mr Justice Lewison held:
“35 In the present case the English proceedings will continue. Skype Technologies is entitled to bring them here because of the exclusive jurisdiction clause; and consistently with Owusu the court will not stay those proceedings. Equally, this court has no jurisdiction to prevent Joltid from bringing proceedings in California against parties who do not have the benefit of the exclusive jurisdiction clause. Accordingly the goal of a single forum cannot be achieved, whichever way I decide this application. It follows therefore that the existence of parallel proceedings and the possibility of inconsistent decisions cannot amount to a strong reason not to enforce the clause by injunction. Whatever I decide that possibility will remain. On the contrary, enforcement of the clause by injunction does at least have the merit that all disputes between the parties to the exclusive jurisdiction agreement itself will be decided in the same forum.
[…]
40 In my judgement these undertakings are no more than an attempt by Joltid to wriggle out of its contract. I do not consider that they should tip the balance against the grant of an anti-suit injunction. In principle, therefore, I shall grant the anti-suit injunction.” [35 and 40].