Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC & Anor [2017] EWHC 3047 (Comm)

This case – which can be found here – concerns multilateral interchange fees (‘MIF’) yet again. This is one of a number of cases where courts had to decide whether such fees were lawful (for examples, see the cases reviewed in my posts of 30 September 2016, 10 February and 24 March 2017). This one, Sainsbury’s v Visa, is a decision about the lawfulness of Visa’s scheme. The case was brought under the shadow of decisions by the European Commission and a number of courts holding that MasterCard’s MIF scheme was unlawful. In order to understand this case, it is important to first understand how the various credit card systems operate. There are two main credit card models: On the one hand we have three-party schemes, like the ones operated by American Express and Dinner’s Club. In a three-party scheme, the operator (such as American Express) both issues cards and settles transactions with merchants. In other words, when an American…

Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2017] CAT 16

This judgment – which can be found here – concerns the first ever class certification request in an opt-out collective damages claim in the UK. I think this is a very important decision. Class or collective actions allow the aggregation of a large number of small claims for competition damages, and are likely to prove a crucial mechanism for customers seeking to obtain redress for loss caused by a competition infringement. Europe is not familiar with the type of class actions that are typical in North America, and the English courts – and particularly the CAT – are one of the first European courts (if not the first) to have to grapple with the challenges that such claims pose. One very important challenge is class certification, while another is the certification of the class representative. The first opt-out collective claim ever brought in the UK– i.e. Dorothy Gibson v Pride Mobility Products Limited [2017] CAT 9 – ended with the…

Renato Nazzini ‘Arbitrability of Competition Claims in Tort and the Principle of Effectiveness of EU Law’ (2017) European Business Law Review 28(6) 795

This paper – which can be found here – contains a discussion of the recent CDC decision by the Court of Justice of the European Union. It begins with  an overviews of debates about the arbitrability of competition law. Whether competition law matters are arbitrable is a question that is connected to a longstanding debate on the ‘public policy’ nature of competition law (which flows from the wording of the New York convention, but we do not need to go there now). It is widely accepted that while many matters may be subject to arbitration, difficulties arise where a dispute concerns a matter of public importance – such as criminal law or insolvency. For a long time, competition law matters were not allowed to be subject to arbitration on both sides of the Atlantic. In the 1980’s, the US Supreme Court reversed course and explicitly held that competition matters were arbitrable. In Europe, the arbitrability of competition law was implicitly…