Today, a tribunal under the auspices of the International Chamber of Commerce (ICC) served a partial final award in a dispute between PharmaEssentia Corp. (“PharmaEssentia”) and AOP Orphan Pharmaceuticals GmbH (“AOP Health”) in AOP Health’s favor. At the heart of the case were reciprocal claims for damages arising from a dispute regarding a licensing agreement between the parties.
The product in dispute
The conflict centers around ropeginterferon alfa-2b, a substance launched in 2019 and that AOP Health has developed into an innovative treatment (BESREMi®) for rare blood cancers, particularly polycythemia vera, through a comprehensive clinical trial program. This makes BESREMi® the best investigated interferon in clinical trials in this indication as documented in the major relevant guidelines1. AOP Health had acquired the rights for both BESREMi®’s development and commercialization in the European, Commonwealth of Independent States (CIS), and Middle Eastern markets from PharmaEssentia in 2009. In its sixth year after its approval by European Medicines Agency (“EMA”), AOP Health has successfully made BESREMi® available to an estimated 9,000 patients in AOP Health’s licensed territory.
First arbitration and set-aside proceedings
Since 2017, PharmaEssentia repeatedly sought to terminate its agreement with AOP Health regarding BESREMi®. In October 2020, an ICC Arbitral Tribunal ruled these attempts unjustified. AOP Health was awarded approx. EUR 143 million in damages for project delays caused by PharmaEssentia, while the latter´s counterclaims were dismissed.
PharmaEssentia’s 2021 application to set aside the award was rejected by the Frankfurt Higher Regional Court. Upon its subsequent appeal to the German Federal Supreme Court, the agreement’s validity and the dismissal of PharmaEssentia ‘s counterclaims was upheld. The German Federal Supreme Court found procedural flaws with respect to damage quantification of the awarded approx. EUR 143 million, impacting the damages awarded.
Second arbitration
In November 2020, PharmaEssentia initiated a legal action against AOP Health, alleging damage claims. AOP Health in turn claimed damages for delays in BESREMi®’s European approval caused by PharmaEssentia, and the misuse of AOP Health’s clinical trial data for PharmaEssentia’s US marketing authorization.
Result: partial final award in favor of AOP Health
While the partial final award rules in favor of AOP Health regarding PEC’s intentional breaches and liability for several claims, the tribunal’s decision on the quantum of those claims is yet to be made.
AOP Health welcomes this decision. It will continue to supply patients in need of ropeginterferon alfa-2b (BESREMi®).
Dr. Rudolf Widmann, one of the two founders of AOP Health, explains: “We are pleased that the ICC Arbitral Tribunal decided in our favor again. However, we still believe that an outcome benefiting the patients most can only be reached by finding a joint solution to not only overcome the past but also future challenges in our cooperation. We are willing to focus on the common objectives and not the differences.”
