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Victory for S&P Global Platts as it defends right to publish Fortescue discount prices

Posted on 27 May 2020

The High Court ruled on 22 May 2020 that there is an 'important and weighty public interest' in the provision of well-informed analysis and data by price reporting agencies in the iron ore markets. The Judgment can be found here.

Australian iron ore producer, Fortescue Metals Group (FMG), sought an injunction restraining S&P Global Platts a division of S&P Global Inc. and fellow price reporting agency Argus Media from publishing news stories referring to the monthly discount used by FMG as part of a formula for pricing sales of iron ore. The use of discounts of this kind is common in the industry and those set by other large producers (such as BHP, Vale and Rio Tinto) have also been reported by PRAs over the years.

S&P Global Inc. persuaded the English Court that its ECHR Article 10 right to freedom of expression outweighed FMG's right to keep information relating to its contracts confidential so as to prevent competitors from undercutting it. The Court was not satisfied that FMG is likely to prevail at preventing publication at trial and dismissed FMG's application. By doing so, the Court discharged earlier 'hold the ring' injunctions that had been imposed. Since then, FMG has discontinued its claim in England and will now be liable for the costs incurred by S&P Global Inc. in this action.

S&P Global Inc., which is based in New York, disputed that the English Court had jurisdiction over it and had commenced a lawsuit in the United States seeking a declaration that any injunction issued against it would be unenforceable against it as a matter of U.S. law and an anti-suit injunction against FMG to prevent further litigation in the U.K.  As a U.S. publisher, S&P Global Inc. enjoys the broad protections of the First Amendment to the U.S. Constitution, which precludes prior restraints against publication of newsworthy information in all but the most exceptional cases.  The U.S. Supreme Court has observed that prior restraints against speech and publications are among the most serious and least tolerable infringements on First Amendment rights.  Foreign judgments that impinge on these rights are deemed repugnant to U.S. public policy and routinely held to be unenforceable.

As noted in Friday's Judgment, the iron ore markets are of great economic strategic importance. They are said by some commentators to be second only in significance to the oil market. The Court in England recognised the importance in a democratic society of the press having access to as wide a range as possible of data points and using their own journalistic and editorial judgment.

Hugo Plowman, Partner at Mishcon de Reya LLP, representing S&P Global Inc. commented: This is a victory for market transparency in an opaque segment of a hugely significant market. The iron ore commodities market impacts us all as it underpins the products we consume and the built environment. My client is very pleased with the result.

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