Just a few days after denying a motion to terminate in Certain Color Intraoral Scanners and Related Hardware and Software, Inv. No. 337-TA-1091, Order No. 23 (May 18, 2018) that was based on a forum selection clause in a prior agreement between private parties (see our prior post), Administrative Law Judge Cheney granted a motion to terminate in another investigation based on an arbitration clause contained in a license agreement.  Certain Wafer-Level Packaging, Semiconductor Devices And Products Containing Same (Including Cellular Phones, Tablets, Laptops, And Notebooks) And Components Thereof, Inv. No. 337-TA-1080, Order 26, (May 21, 2018).

As highlighted in our prior post, Judge Cheney had explained some distinctions between forum selection and arbitration clauses in Intraoral Scanners, including that arbitration is a policy expressly favored by law.  Now, Judge Cheney has made the distinction between the two types of clauses even more explicit by expressly distinguishing his decision in Intraoral Scanners as involving “different facts.”  According to Judge Cheney, “a prior agreement between private parties selecting a court in another country [Denmark] to resolve contractual disputes presents different considerations than a prior agreement to arbitrate.”

Takeaway:  Section 337(c)’s authority to terminate an investigation “on the basis of an agreement between the private parties” is discretionary.  Judge Cheney’s recent decisions on motions to terminate illustrate that the issue is fact-specific and may require a detailed look at both the agreement in question and the policy behind the discretionary authority to terminate.