Learn from the mistakes of others

US court throws out Microsoft's plea for help
http://news.zdnet.co.uk/software/windows/0,39020396,39260302,00.htm
Reuters
Reuters
March 30, 2006, 12:05 BST

A District Court in California on Wednesday quashed an attempt by Microsoft to force Sun and Oracle to provide documents in its battle with the European Commission.

But judges in New York and Boston are still considering similar requests against IBM and Novell respectively, as Microsoft fights against possible fines of up to €2m (£1.4m) a day for failing to carry out sanctions imposed by the Commission, lawyers for one of the companies said.

A Commission hearing officer, Karen Williams, had rejected Microsoft's call for a number of documents, ruling they were confidential. So Microsoft got US courts to issue subpoenas, which were challenged.

"Microsoft has attempted to cast the DG-Competition as an 'adversary'. In light of the nature of the European Commission, that label is incorrect," US Magistrate Judge Patricia Trumbull said in a six-page decision issued on Wednesday.

"As a matter of comity, this court presumes the neutrality of both the DG-Competition and the European Commission," the judge wrote.

Microsoft had asked the Commission to turn over communications between the companies and the Commission, a monitoring trustee in the case and a technical adviser to the Commission.

A copy of her decision was made available by lawyers for the companies.

"There's no such thing as comity if you can use foreign courts to end-run each other's rulings," said Daniel Wall, lawyer for Oracle.

Microsoft was not immediately available for comment.

Microsoft had said it needed the documents for its defence against the potential fine. On Thursday and Friday, it faces an oral hearing before Williams concerning the possible fine.

Williams will make no decision, but send observations to European Commissioner Neelie Kroes as to whether Microsoft has failed to carry out sanctions.

The Commission found in 2004 that Microsoft used its dominance of PC operating systems to compete unfairly against rivals. The EU's number two court fined Microsoft €497m and ordered it to provide rivals with protocols making it easier for them to build software that could interoperate and co-exist on networks with Windows machines.

i would have been shocked if the us court had decided otherwise. comity is very important in the international arena - it is a foundation of private international law, aka choice of law. no one likes litigants who run off to a 'more favourable' jurisdiction to get a ruling that interferes in the processes of the original jurisdiction.

if the us court had upheld microsoft's argument, it would risk having the europeans ignore the court's ruling - or even explicitly dispute it. not a good for future relations. international law provides that courts ought to give effect to one another's judgements. this reduces the risk of forum shopping (hunting about for a more favourable court) and strengthens the power of courts in both lands by ensuring that those who have 'lost' cannot evade penalties merely by going somewhere else.

comity is not the same as extradition. extradition allows a court to order a person to be delivered into the jurisdiction of the other court. comity enables courts to uphold each other's decisions and enforce them in each other's place. in both cases, an application must be made to the relevant court.