MUNDIPHARMA AG Vs. WOCKHARDT LIMITED

JUDGEMENT

(1.) -

(2.) IN this petition filed under section 20 of the Arbitration Act, 1940 (for short 'the Act') I am to decide by this order an application (I.A. 5010/90) of the petitioner filed under section 41 and II Schedule of' the Act read with Arbitration (Protocol and Convention) Act, 1937 and again read with the INternational Chamber of Commerce Rules of Arbitration.

(3.) THE petitioner does not seek restraint on the respondent from using the trade mark 'Wokadine' of the respondent. As has been seen, the principal grievance is about the user of PVP-I in the preparations by the respondent either during the currency of the agreement or three years after that. Anticipating the defence that the restraint put on the respondent in the agreement would be hit by the doctrine of 'restraint of trade' being opposed to public policy, the petitioner filed an affidavit of Ms. Antoinette F Werner, a lawyer practising in Switzerland. At the time this affidavit was sworn Ms. Werner was in India. She stated that she held a law degree from the University of Laussanne, Switzerland, and had been advising various Swiss Corporations on legal matters and was well acquainted with the business laws. She said- she 'had seen the agreement in question and that clause 27 of the agreement containing a prohibition to compete for the respondent during tne licence and three years after termination was enforceable under the Swiss law. This affidavit is sought to be used as an opinion of a person specially skilled in foreign law being relevant under section 45 of the Indian Evidence Act, 1872.