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A guide to the UPC and the UP - Flipbook - Page 466

future disputes.” 46 However, the Commission then goes on to give examples of specific
situations in which non-challenge clauses in settlement agreements can be anti-competitive
and may be caught by Article 101(1) TFEU so, it is advisable that such any terms are considered
carefully from a competition perspective.
Confidentiality
22-33 If the parties do elect to inform the Court of the terms of a settlement (rather than merely
notifying the Court of the fact of the settlement, or withdrawing the action) then, under r.365(2)
RoP, the parties may request that the details of the settlement are to be confidential. As set out
above, it is not clear whether both parties need to request confidentiality, or whether it can be
granted at the request of a single party. It is also not clear whether or not the Court will make
any assessment of confidentiality when considering such a request. However, it seems unlikely
that the Court will have many reasons to object to such a request.
22-34 Unlike the other provisions relating to confidentiality of the register, 47 the RoP does not contain
a mechanism to challenge the confidentiality of a settlement. This suggests that the Court is
unlikely to make a formal assessment of whether the terms of the settlement are genuinely
confidential. Instead, it seems likely that the Court will order that terms of a settlement are
confidential, if such a request is made by the parties. This seems logical as the details of a
commercial settlement are inevitably likely to contain confidential information, which may
also be unrelated to the merits of the litigation itself.
Governing Law
22-35 Governing law is sometimes overlooked in settlement agreements, especially settlement
agreements that may be negotiated in a short timeframe without the parties having input from
their legal advisors. As different jurisdictions have different rules governing the circumstances
in which a settlement agreement will be considered to be binding, the choice of governing law
should be considered carefully, and the agreement should clearly and expressly state its
governing law.
22-36 If a settlement agreement is silent as to the governing law, national law as well as applicable
EU law such as the Rome I Regulation 48 and/or private international law will determine which
law is applicable to the settlement agreement. Under the Rome 1 Regulation the agreement
will then be governed by the law of the country where the party required to effect the
characteristic performance of the contract has its habitual residence, unless it is clear from
all the circumstances of the case that the contract is manifestly more closely connected with
another country in which case the law of such other country will apply. The rules relating to
the determination of the law that govern a Unitary patent as an object of property are not
relevant to the determination of the governing law of a settlement agreement relating to
Unitary patents. 49
22-37 In the absence of a stated governing law there could be some real difficulty in determining
the country of closest connection to the settlement agreement since the Court itself is a
supranational institution. This could therefore give rise to a significant area of dispute.
46
47
48
49
Communication from the Commission – Guidelines on the application of Article 101 of the Treaty on the Functioning of the
European Union to technology transfer agreements (OJ C 89, 28.3.2014, p. 3–50) at para 242-3.
r.262 RoP. See chapter 12 (Written Procedure) paragraphs 12-47 to 12-49.
Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) OJ L 177, 4.7.2008, p. 6.
art.7 Unitary Patent Regulation. See the discussion in chapter 3 (Transactions with Unitary Patents and European Patents
Subject to the Court) paragraphs 3-33 to 3-42 for a discussion of this point.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 456