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casetreasury

Epic Games, Inc v Apple Inc [2021] FCAFC 122

Facts: Apple requires all app updates to go through the App Store but Epic Games has fixes that go through their system & Apple blocked their upgrade. Apple commenced proceedings in the US and Epic Games brought proceedings in AU seeking to rely on Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth). However, there was a clause in the agreement nominating Northern California jurisdiction.


Clause 14.10 of Apple Developer Program License Agreement: “Any litigation or other dispute resolution between You and Apple arising out of or relating to this Agreement, the Apple Software, or Your relationship with Apple will take place in the Northern District of California, and You and Apple hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect any such litigation or dispute resolution.”


Apple sought a permanent stay of proceedings in Australia (AU) based on the exclusive jurisdiction clause. The trial judge (TJ) stayed proceedings.


Outcome: Given the public interest and economic factors, there was a ‘strong cause’ not to uphold the FEJC for California. Epic’s claims had a public dimension; Apple’s conduct would adversely affect competition and consumers in Australia (therefore, having economic significance for Australia).


Held (FCA): TJ failed to make a cumulative assessment (weigh up all the factors) re juridical disadvantage (which is not just about winning or losing in a foreign country, but a question re the nature of remedies). Even if California did apply the ACL and Competition and Consumer Act, which they may not, the remedies available were different. There was parliamentary intent that all Competition and Consumer Act matters be heard in AU to build a consistent body of law. The Court also held that it shouldn’t cavil with the fact that exclusive jurisdiction clauses are a key feature of global commerce and are important for preventing a multiplicity of suits arising out of the same dispute, and removing or reducing the risk of inconsistent factual findings.


Held (at [82]): “If the party resisting the stay application on the basis of an exclusive forum clause establishes that there are aspects of Australian law that would not apply in the foreign court, the nonapplication of which involves depriving that party of a legitimate juridical advantage, that may comprise strong reasons not to grant a stay unless the party seeking the stay proves to the contrary.”


Held (at [111]): Citing Global Partners, “[t]here is a clear commercial interest in minimising the possibility of a dispute being determined by multiple tribunals, with the consequent prospect of divergent findings”.

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