Private Antitrust Enforcement: A New Era for Collective Redress?

This paper by Sofia Pais just came out.

Abstract:

It will be argued in this article that the EU Recommendation on common principles for collective redress might have limited impact on the field of competition law due to: several uncertainties regarding the legal standing in class actions; difficulties in their funding; and the risk of forum shopping with cross-border actions. Nevertheless, Belgium and Great Britain have recently introduced class actions into their national legal systems and addressed some of the difficulties which other Member States were experiencing already. It will also be suggested that the Portuguese model – the ‘Popular Action’ – and recent Portuguese practice may be considered an interesting example to follow in order to overcome some of the identified obstacles to private antitrust enforcement.

 

Is Switzerland a good seat for foreign antitrust claims?

Lawyers at Froriep argue here that it is the case. They list the reasons as follows:

  • Antitrust claims are fully-arbitrable under Swiss law (at least when raised defensively, which is generally the case);
  • Switzerland has taken a pro-arbitration stance on the interpretation of arbitration clauses (hence making it likely that antitrust claims will be seen as falling with the scope of such clauses);
  • The Swiss Supreme Court has found that the non-application or incorrect application of a foreign antitrust statute (in that case, EU competition law) does not constitute a breach of Swiss public policy (i.e. Eco-Swiss does not apply);
  • The standard of review applied by the Swiss Supreme Court to petitions for setting aside arbitral awards is limited in scope;
  • Treble/punitive damages are available (which is rarely the case in other continental jurisdictions); and
  • As Switzerland is not part of the EU, the decisions of Swiss arbitral tribunals are not subject to the review of the EU courts and the competition authorities.

ICC YAF: Distribution Law and Arbitration / 4 November 2016

There are many points of contact between competition law and distribution law.

For those interested in distribution law and arbitration, you can find here the programme of an interesting conference jointly organised by the ICC Young Arbitrators Forum (ICC YAF), the University of Turin, the Piedmont and Aosta Valley Section of the Italian Society for International Organization (SIOI) and the Moot Alumni Association Turin (MAAT). It will take place in Torino on 4 November 2016.

Unwired Planet v. Huawei (High Court of England & Wales)

Very interesting trial started last Monday at the High Court in London. This is the FRAND trial part of the patent litigation case between Unwired Planet, a patent assertion entity (PAE) that bought standard-essential patents (SEPs) from Ericsson, and Huawei, a large manufacturer of smartphones and telecommunications infrastructure.

Mr Justice Colin Birss will have to deal with a range of very interesting issues, including whether Unwired Planet:

  • holds a dominant position on one or several markets and thus whether Article 102 TFEU applies.
  • illegally started injunction proceedings without complying with the licensing framework set out in the European Court of Justice in its 2015 Huawei/ZTE judgment.
  • illegally required that Unwired Planet to license its SEP portfolio on a global scale.

In addition, Mr Justice Colin Birss will have to determine whether the royalties asked by Unwired Planet are FRAND.

Google and Samsung settled with Unwired Planet before the beginning of the trial.

If you are interested in the application of EU competition rules to PAEs, you may wish to have a look at my paper here.

 

 

 

 

 

 

Antitrust damages actions – Commission publishes study on obtaining and assessing economic evidence for passing-on of overcharges

This study can be found here.

Executive summary:

This Study is intended to provide judges, and other practitioners who are not economic experts, with practical guidance on obtaining and assessing economic evidence in relation to pass-on in the context of competition law infringements. Drawing on relevant economic theory and quantitative methods, as well as relevant legal practice and rules, it sets out a framework for evaluating the plausibility of claims, for quantifying the effects of pass-on, and, accordingly, for assessing the total extent of the harm suffered by a claimant. EU Directive 2014/104 establishes that any person who has suffered harm caused by a competition law infringement may claim full compensation for that harm. This includes the possibility of indirect claims, which arise when those that are not directly affected by such an infringement (notably, indirect purchasers) are nevertheless harmed as a result of changes in the behaviour of directly affected firms (the direct purchasers) as well as, potentially, other intermediate firms. There are three distinct elements that make up the recoverable harm potentially suffered by a claimant.

First, there is the increase in the claimant’s costs (“the overcharge”) that may be brought about by the infringement: in legal terms, actual harm or direct loss (damnum emergens). Such harm may arise directly or because of “upstream” pass-on by a direct or indirect purchaser that supplies the claimant.

Second, the adverse impact of the overcharge on the claimant may be reduced if it passes on some or all of that overcharge to its own customers, by means of a price increase. This is the “passing-on” effect. Whilst such “downstream” pass on reduces the actual harm suffered by the claimant in question, it will do so at the expense of causing harm further downstream. Indeed, the pass-on effect at one level of the supply chain implies an overcharge of the same magnitude at the next level downstream; they are two sides of the same coin. In litigation, pass-on can, therefore, serve as a “sword”, where an indirect purchaser alleges that an overcharge has caused it harm because of upstream pass-on. It can also be used as a “shield”, where a defendant alleges that downstream pass-on by a claimant has reduced the actual harm the latter has suffered.

Third, to the extent that a claimant suffers a loss of sales volumes as a consequence of pass-on, it will lose the profit margins associated with those sales. This so-called “volume effect” constitutes recoverable loss of profit (lucrum cessans) in legal terms and forms part of the overall damage calculation. Whenever a firm increases its prices, it will almost invariably suffer such a loss of sales volumes. It is the extent of this prospective loss, which hinges on the sensitivity (or elasticity) of a firm’s demand to price increases, that tempers the extent of passing-on in the first place.

Arbitrability of EU Competition Law-Based Claims: Where Do We Stand after the CDC Hydrogen Peroxide Case?

This new paper, I co-authored with E. Villano, can be downloaded here.

Abstract:

In this paper, we discuss the extent to which EU competition rules are arbitrable. There is a wide consensus that Articles 101 and 102 TFEU are fully arbitrable and we share that opinion. More challenging questions may, however, arise when the dispute subject to arbitration raises issues under the other competition provisions of the TFEU, i.e., Articles 106 to 108, as well as in secondary EU competition legislation (e.g., the EU Merger Control Regulation). Moreover, in the recent CDC Case, the question has arisen as to whether arbitration is a suitable method to settle claims for damages arising from breaches of competition law made by one of the parties to a contract containing an arbitration clause. We discuss AG Jääskinen’s controversial Opinion, the judgment of the CJEU, and their possible implications on the arbitrability of damages actions based on breaches of EU competition rules.

 

Fantastic Opinion of Advocate General Wahl in Intel appeal case

I spent my morning reading this important Opinion and talking to journalists about its implications with interviews with Bloomberg, Politico and GCR. The Opinion is amazingly well-drafted and reasoned. It is a systematic destruction of the judgment of the General Court and by the same token of the Commission findings. The Opinion emphasizes the importance to look at all the circumstances of the case even when loyalty rebates are at stake suggests that this reading is compatible with Hoffman-La Roche and the existing case-law of the Court of Justice. The Opinion is also important because it observes that it is not sufficient to say the conduct in question is capable of having anti-competitive effects, it must be ascertained whether “in all likelihood” the conduct has an anticompetitive foreclosure effect. The AG considers that all the grounds of appeal raised by Intel both on substance and procedure should be upheld. Should the Court of Justice follows the AG, this would be one of its most important judgment of the past 25 years.

The Power of Arbitral Tribunals to Raise Public Policy Rules Ex Officio: The Case of EU Competition Law

Please click here if you want to access this new paper of mine.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.