Arbitration & Antitrust

Procedures

The Regional Court of Dortmund holds that standard arbitration agreements apply to cartel damages actions if and when the alleged conduct coincides with a breach of contract deviating from the ECJ’s foreseeability theory established for jurisdiction clauses in its CDC judgement
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
1. Introduction The question of whether cartel damages claims can be tried in arbitration under so-called ’standard’ arbitration agreements – meaning not explicitly referencing tortious or even specifically antitrust damages claims – has recently been the subject of much debate. Regarding (...)

The French Supreme Court holds that a jurisdiction or arbitration clause cannot be used by foreign undertakings to discard the application of French provisions on unfair trade practices when the action is brought by the Minister of the economy (Apple)
French Competition Authority (Paris)
In a recent decision, the French Supreme Court had to decide whether or not a jurisdiction clause or an arbitration clause could be used by foreign companies to discard the application of French law enforcement concerning unfair trade practices, e.g. Article L. 442-6 of the Commercial Code. (...)

The Danish Supreme Court upholds a decision of the High Court regarding infringement of competition law by an arbitration award and confirms the “Eco Swiss” doctrine (Taewoong / Ah Industries)
University of Copenhagen
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Accura (Copenhagen)
Summary of the case In a January 2016 ruling the Danish Supreme Court rejected the argument that a 2011 arbitration award infringed competition law and therefore should be set aside . The dispute between the parties pertained to the termination of an international distribution agreement (...)

The Swedish Supreme Court rejects a claim for annulment of an arbitration award without assessing the formal matter of the legislation on which the award was based (Systembolaget Aktiebolag)
Vinge (Stockholm)
The Swedish Supreme Court rejected, on 17 June 2015, a claim for annulment of an arbitration award. The claimant, Systembolaget Aktiebolag (“Systembolaget”) contended that the arbitration panel had misinterpreted the competition rule and that the legal issue of the case did not fall within the (...)

Arbitration and Antitrust: An overview of EU and national case law
Landolt & Koch (Geneva)
I. Introduction Arbitration is a prominent method of binding dispute resolution in international commercial relations. Some commentators, generally international arbitration practitioners, even claim that it is “the preferred method of international dispute settlement”. Since arbitration ousts (...)

The Australian Federal Court decides that the Competition Authority cannot hear or determine disputes on agreed terms and conditions in relation to network access charges leading the Authority to cease arbitration of these matters (Telstra Corporation Limited / Vocus Fibre)
Australian Competition and Consumer Commission (Canberra)
ACCC ceases arbitrations following court decision* The Full Federal Court has handed down its decision on a judicial review application originally commenced by Telstra on 3 January 2014. Telstra sought review of the Australian Competition and Consumer Commission’s jurisdiction to arbitrate (...)

The Madrid Court of Appeal establishes that there should be no bar to the effect of the arbitration clause and the arbitrability of a dispute concerning rights and obligations arising out of vertical agreements in the motor vehicle sector (Camilaga / DAF Vehiculos)
CMS Cameron McKenna (Sofia)
Arbitrability of Competition Law Issues Reinforced* A number of decisions of various national courts have dealt with the issue whether a competition law dispute may be referred to arbitration. Although the case law tends to favour a positive answer, it is still an issue that is being (...)

The US Supreme Court reverses the judgment of the Court of Appeals and holds that the parties’ agreement on arbitration shall remain valid (American Express / Italian Colors Restaurant)
Faegre Baker Daniels (Indianapolis)
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Faegre Baker Daniels (Minneapolis)
Supreme Court Decides American Express Co. et al v. Italian Colors Restaurant et al* On June 20, 2013, the Supreme Court decided American Express Co. et al v. Italian Colors Restaurant et al, No. 12-133, reversing the Second Circuit and holding that the Federal Arbitration Act (FAA) does not (...)

The US Supreme Court upholds contractual provision waiving class arbitration (American Express / Italian Colors Restaurant)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
Plaintiff merchants asserted antitrust tying claims against American Express, alleging that its “honor all cards” rule leveraged its monopoly power in the credit card market to force merchants to accept cards with higher interchange fees than they would have paid in the absence of that rule. (...)

The US Supreme Court rules that an arbitration agreement did not prevent effective vindication of antitrust rights (American Express / Italian Colors Restaurant)
Wolters Kluwer (Riverwoods)
Arbitration Agreement Did Not Prevent Effective Vindication of Antitrust Rights* Consumers and small businesses that are parties to contracts containing arbitration agreements will find it tougher, if not impossible, to avoid the terms of those agreements and pursue an antitrust action in (...)

The US Court of Appeals for the Ninth Circuit reinforces the validity of arbitration clauses, but leaves door open for public injunction challenges (Kilgore)
US Federal Trade Commission (FTC) (Washington DC)
In the U.S., pre-dispute arbitration clauses are common in consumer financial services agreements, such as credit card, banking and investment contracts. These clauses traditionally compel the involved parties to resolve any legal dispute in arbitration, while foreclosing traditional state and (...)

Arbitration and Antitrust: An overview of EU and national case law
University of Milan
I. Preliminary remarks The analysis of the EU and national reported case law on arbitration of EU competition law disputes shows that the majority of disputes originate from arbitration clauses contained in horizontal or vertical agreements and that arbitral tribunals are requested to assess (...)

The United States District Court for the Southern District of New York finds that a series of meetings between two credit card companies related to drafting and implementing arbitration clauses was probative of an antitrust conspiracy (Currency Conversion Fee)
Sheppard Mullin (New York)
New York Federal Court Holds That Meetings Related To Drafting Arbitration Clauses May Be Probative Of Antitrust Conspiracy Despite Decision Makers’ Lack Of Knowledge* In In re Currency Conversion Fee Antitrust Litig., 2012 WL 401113 (S.D.N.Y. Feb. 8, 2012), Judge William H. Pauley III denied a (...)

Several US Federal District Court rule against customers’ efforts to use arbitration to challenge a merger in the mobile sector (AT&T Mobility / Smith/ Gonnello / Bernardi / Fisher )
Wolters Kluwer (Riverwoods)
Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail* Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at (...)

The US Supreme Court holds that consumer arbitration clause containing a class action waiver is enforceable (AT&T Mobility / Concepcion)
White & Case (Miami)
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White & Case (Los Angeles)
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White & Case (Washington)
On April 27, 2011, the US Supreme Court issued the long-awaited opinion in AT&T Mobility, LLC v. Concepcion. (No. 09-893, 563 US ____, slip op. (April 27, 2011)) Justice Scalia’s majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, held that because (...)

The US Supreme Court overturns a court of appeal’s decision in the mobile sector holding that federal law preempts state law banning class action waiver in arbitration agreements (AT&T Mobility / Concepcion)
Wolters Kluwer (Riverwoods)
Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail* Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at (...)

The US Court of Appeals for the 2nd Circuit holds that a class action waiver provision contained in commercial contracts between merchants and charge card issuer/servicer provider was unenforceable (American Express)
Wolters Kluwer (Riverwoods)
Enforceability of Class-Arbitration Bans Still an Open Question* Including an arbitration agreement in a commercial or consumer contract that requires your customer to pursue only individual claims in the arbitral forum will not necessarily protect you from class-wide arbitration. You will (...)

The US DoJ and FCC conditionally approve a joint venture in the telecommunications sector resolving antitrust concerns (Comcast / NBC Universal)
Wolters Kluwer (Riverwoods)
Comcast/NBC Universal Joint Venture Receives Regulatory Approval* The Department of Justice Antitrust Division and the Federal Communications Commission today conditionally approved a joint venture between Comcast Corp. and General Electric Co.’s subsidiary NBC Universal Inc. The joint (...)

The OECD holds a roundtable on arbitration and competition
OECD - Competition Division
The use of alternative dispute resolution mechanisms, including arbitration and mediation, to resolve commercial disputes with a competition component has increased exponentially in recent years. This interplay between arbitration and competition law has stimulated a lively debate amongst (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Stolt-Nielsen / AnimalFeeds)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The US Court of Appeals for the 9th Circuit holds a class-arbitration clause in a telephone sector agreement unenforceable under state law (Laster / AT&T Mobility)
Wolters Kluwer (Riverwoods)
Enforceability of Class-Arbitration Bans Still an Open Question* Including an arbitration agreement in a commercial or consumer contract that requires your customer to pursue only individual claims in the arbitral forum will not necessarily protect you from class-wide arbitration. You will (...)

The Supreme Court of the Netherlands declares that the national provision equivalent to Art. 81 EC is not a provision of public policy and, as a consequence, may not be applied ex officio by Dutch courts (De gemeente Heerlen / Whizz Croissanterie)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
The municipality of Heerlen is the owner of four buildings located in a shopping street of that city. In order to erect those buildings, the municipality concluded an agreement with Whizz in November 1999, according to which Whizz had to evacuate the kiosk within which it was running his (...)

The Spanish Competition Authority fines collecting societies for the second time in two years for abuse of dominance in their management of intellectual property rights (AGEDI)
Cleary Gottlieb Steen & Hamilton (Brussels)
On 9th December 2008, the Spanish Competition Commission (“CNC”) issued a decision, establishing that the Association for the Management of Intellectual Property Rights (AGEDI) and the Management Society of Artists, Interpreters or Performers (AIE) had abused their dominant position in the market (...)

The French Supreme Court rules on the criminal rules governing the limitation period in an abuse of dominant position case (SNF / Cytec Industries)
Innovate Finance (London)
Few decisions are grounded on Article L. 420-6 of the French Commercial Code (hereinafter “FCC”). The latter organizes the sanctions applicable to the infraction constituted by the malevolent, personal and determining participation to a forbidden anticompetitive practice such as an agreement (...)

The Swedish Supreme Court declares itself lacking jurisdiction as a result of an arbitration clause (BornholmsTrafikken/Ystad Hamn)
Vinge (Stockholm)
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Svea hovrätt (Swedish courts)
Background The Danish state runs a ferry service (“BornholmsTrafikken”) which operates between Bornholm in Denmark and Ystad in Sweden. The Port of Ystad (the “Port”), which is owned by the municipality, provides various services to BornholmsTrafikken. BornholmsTrafikken commenced proceedings (...)

The US Court of Appeals for the Fourth Circuit holds that parties to an arbitration agreement that prohibited joinder of jointly and severally liable defendants did not alter any substantive right under the Sherman or Clayton Acts (Cotton Yarn Antitrust Litigation)
White & Case (Washington)
In In re Cotton Yarn Antitrust Litigation, (505 F.3d 274 (4th Cir. 2007) the Fourth Circuit held inter alia that parties to an arbitration agreement that prohibited joinder of jointly and severally liable defendants did not alter any substantive right under the Sherman or Clayton Acts so as to (...)

The Higher Regional Court of Thuringia analyses Art. 81 EC and § 1 of the German Act against Restraints of Competition as part of the ordre public with respect to the enforcement of foreign arbitral awards (Schott)
Eberhard Karls University of Tübingen
I. Preliminary remarks and facts of the case The field of civil antitrust litigation is much debated about with respect to the enforcement of national and European competition laws before the German courts. Yet also important and even more complex in some way is the question how and to what (...)

A Dutch Court holds that a State aid to a coal gasification plant notified to the EU Commission is included in the scope of a former positive Commission decision and refuses to await the second Commission’s decision (Demkolec/NV SEP)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
The case at hand concerns an experimental coal gasification plant, Demkolec, owned by NV SEP, the legal predecessor of Nederlands Elektriciteit Administratiekantoor (NEA). The Dutch public authorities decided to support the building of Demkolec for environmental reasons. Since the beginning, (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Bell Atlantic / Twombly)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The Swiss Federal Tribunal renders a decision putting into question the arbitrator’s public policy dilemma with regard to competition law
Landolt & Koch (Geneva)
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Three Crowns (London)
This article is an extract of a set of five contributions around the Swiss Federal Tribunal’s Decision of 8 March 2006 published in the review Concurrences N° 3-2006. Other articles by : Professor Laurence Idot, ECJ Advocate General Damaso Ruiz Jarabo Colomer, Professor François Knoepfler and (...)

The UK Hight Court holds that Art. 81 and 82 EC claims are arbitrable (Eurotunnel)
White & Case (London)
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Pinsent Masons (London)
Background In 1994, Eurotunnel (a joint venture operated by the eighth and ninth defendants, Channel Tunnel Group Limited and France Manche SA, respectively) entered into a contractual relationship with Transferry SPA and ET Plus Lux SA (the sixth and seventh claimants) whereby the claimants (...)

A Dutch Court of Appeal refuses to order the execution of an award adopted by an American arbitration panel for breach of a licensing agreement, on the grounds that it violates Art. 81.1 EC and is contrary to public policy (Marketing Displays International / VR)
European Commission - DG HR (Brussels)
The companies concerned, Marketing Displays International (“MDI”) and VR, established in the United States of America and in The Netherlands respectively, are both active in the manufacture and marketing of bill boards. On 7 September 1990, MDI and VR concluded a licensing agreement, by which MDI (...)

The German Higher Regional Court of Düsseldorf holds that for foreign arbitration awards to be recognised and enforced in Germany they have to comply with fundamental provisions of German and European competition law (Regenerative Wärmetauscher)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 21 July 2004, the German Higher Regional Court of Düsseldorf issued a decision on the recognition and enforcement of foreign arbitration awards as regards competition law matters . Facts Until the end of 1989 the defendant was a producer and distributor of regenerative heat exchangers for (...)

The Spanish Competition Authority rules that a non-compete clause of unlimited duration did not infringe either EC nor national competition provisions on the basis of a "de minimis" yet unwritten rule (Hardi International)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
In a Decision dated March 27th, 2000, the former Spanish second-tier Competition Authority (“Tribunal de Defensa de la Competencia”, hereinafter, the “TDC”) ruled that a non-compete clause ancillary to a merger of unlimited duration did not infringe either Article 81 EC or Article 1 of the Spanish (...)

The Queen’s Bench Division of the High Court of England & Wales refers to the ECJ on the fact for parties to an agreement to use allegations of breach of competition law to avoid honouring their obligations under a commercial contract (SUNAG)
Reed Smith (London)
This was a commercial private arbitration case which ended up before the English High Court, Queen Bench Division (Case C-339/95), and was referred to the European Court of Justice for a preliminary ruling. A unanimous arbitration award to enforce the agreement was appealed in the commercial (...)

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