Zygimantas Juska ‘The Effectiveness of Antitrust Collective Litigation in the European Union’ (2018) International Review of Intellectual Property and Competition Law 49(1) 633

The article, which can be found here, seeks to assess whether European efforts to promote compensation for anticompetitive harm have been successful. These efforts have focused on promoting compensation, treating deterrence as a goal best promoted through public enforcement. It finds that collective enforcement has not been successful in the EU, particularly by comparison to the US, where the main objective of private enforcement is deterrence. By granting standing to both direct and indirect purchasers without also creating appropriate collective redress mechanisms, the EU system merely ensures that neither direct purchasers nor indirect purchasers can effectively exercise their right to compensation. The paper argues that Europe should adopt a deterrence-enhancing approach to private enforcement that borrows from the US. The paper is structured as follows: Section 2 provides an overview of competition enforcement models in the EU, with an emphasis on private enforcement. It begins by describing how public enforcement prevails in EU competition law, which broadly assumes that fines and…

Peter Davis  ‘Economic Analysis in Damages Actions—Insights from Recent Proceedings in the UK’ (2017) Journal of European Competition Law & Practice 8(9) 593

This paper reviews the core legal test applied by the CAT for class certification in the two opt-out collective proceedings brought in the UK until now, and then considers the key economic issues at the heart of these cases. It begins by describing the relevant legal test for certifying a class. It then moves to the main question it seeks to address: how rigorous can the Tribunal be in the context of an opt-out collective proceeding order (CPO) when there has been either no or only very limited disclosure prior to the hearing, and the goal of class certification procedures is to have shorter hearings held within months of the claim form being served. It also reviews the economics questions raised by both class certification cases: In Mobility Scooters, the infringement was a vertical restriction related to the advertising of lower prices which affected seven out of 38 models of mobility scooters available in the market. The main questions for…

Michael J. Frese ‘Civil Liability for Single and Continuous Infringements’ (2018) World Competition 41 (2) 179

Infringement decisions by competition authorities in Europe provide irrefutable, or at least prima facie evidence of antitrust violations in follow-on cases brought before national courts. This binding effect of infringement decisions is meant to ease the burden on injured parties seeking to obtain damages. Evidentiary rules applicable to investigations thus have a bearing on the outcome of civil litigation and the scope of potential damages exposure. The single and continuous infringement (SCI) is an example of such an evidentiary rule. This legal construct alleviates the burden on competition authorities to prove individual details of cartels whose membership and activities may have evolved over time. However, appropriate limiting principles are required to ensure that defendants are not paying for harm they have not caused or could not have prevented. This article, available here, discusses the evidentiary value of single and continuous infringement findings in follow on damages litigation, and explores the available limiting principles. It is structured as follows: After the introduction,…

Olga Sendetska ‘Arbitrating Antitrust Damages Claims: Access to Arbitration’ (2018) Journal of International Arbitration 35(3) 357

In 2015, the Court of Justice of the European Union (CJEU, Court) delivered a judgment in CDC v. Akzo Nobel finding that broadly worded jurisdiction clauses do not extend to competition-related tortious damages claims. Even though the Court did not address arbitration clauses, a spillover into this area may nonetheless take place. This is reflected in how, both prior to and after the CDC judgment, Member States’ courts have reached conflicting conclusions when dealing with broad arbitration clauses. This article, which can be found here, reviews these developments as follows: The introduction reviews the relationship between arbitration and private competition enforcement in the EU. The arbitrability of competition law issues is now generally acknowledged in the EU. Nowadays, arbitral tribunals do not even discuss the issue of antitrust arbitrability in their awards. Academic commentators focus on discussing whether certain contractual formulas amount to valid consent to arbitrating EU competition law matters. Arbitral tribunals are able to deal with matters such…

James Segan ‘Arbitration Clauses and Competition Law’ (2018) Journal of European Competition Law & Practice 9(7) 423

This paper, available here,  takes a practical take on how arbitration clauses should be construed when trying to determine whether a competition claim is arbitrable. It argues that the current EU approach to these clauses risks creating circumvention efforts, whereby competition law claims are ‘dressed up’ as contractual claims to circumvent the perceived effect of the CDC decision. A more predictable and sustainable approach would be the ordinary approach of focusing on the objective measure of connection between tortious competition law complaints and the subject matter of the agreement containing the arbitration clause. The paper is structured as follows: A first section reviews prior debates on the interplay between competition and arbitration. Historically, the literature focused on three topics, namely: (i) whether competition law claims are arbitrable at all; (ii) whether arbitral tribunals are under a duty to rule upon competition law claims raised by the parties or to raise such issues ex officio, and (iii) whether and in what ways a court,…

Barbara Warwas ‘The State of Research on Arbitration and EU Law: Quo Vadis European Arbitration?´ (2016) EUI Working Paper LAW 2016/23

This is not so much a paper as a book – or at least an extended report that can be found here. The goal of this paper is to provide a systematic literature review of studies on arbitration in recent decades, with a focus on emerging developments in arbitration and EU. Since it is 109 pages long, I will provide only a high-level overview, with detailed discussions of those topics that are of greater interest to me. Academic studies of arbitration have proliferated in recent decades, partially as a function of the professionalization of international arbitration practice. This abundant arbitration scholarship follows two streams. On the one hand, one can come across research largely revolving around the practicalities of arbitration whose main objective is to reveal how arbitration works in practice. On the other hand, one can find literature on the interplay between arbitration and law. This second type of literature is often more critical than studies on the practice…

Eckart Bueren, Kai Hüschelrath, and Tobias Veith ‘Time is Money–How Much Money is Time? Interest and Inflation in Competition Law Actions for Damages’ (2016) Antitrust Law Journal 81(1) 271

One aspect that is often overlooked, but is of enormous practical importance in competition damages cases, is the way a legal system deals with costs associated with the passage of time, as expressed through interest and inflation. Cartel damages generally are spread over a cartel’s lifespan, which can be long; furthermore, a considerable amount of time often elapses between the incidence of loss and the award of damages. This paper – which can be found here – seeks to address a gap in the literature by describing how major legal systems deal with interest and inflation in the context of antitrust damage claims, what the consequences are of adopting certain approaches to interest and inflation for recoverable damage amounts, and whether these approaches are economically sound. The paper is structured as follows: The first section describes the main economic approaches to address the passage of time on damages awards and for selecting an appropriate interest rate. Four main measures are identified: the…

Jens-Uwe Franck and Martin Peitz ‘Toward a coherent policy on cartel damages’ (2018) University of Manheim Discussion Paper No. 007

In short, the argument of this paper – which can be found here – is that there is an undue focus on overcharges when talking about cartel damages. The authors argue that significant losses can be suffered as a result of volume effects as well, i.e. from reduced sales / purchases as a result of the higher price that results from a competition infringement. This has implications in terms of standing, since victims of volume effects may not be allowed to bring claims for damages. This is mistaken, and standing should be granted to victims of volume effects. The argument is developed as follows: Part II outlines the law on antitrust standing in the U.S. and the E.U., as well as the basic economics of cartel damages and optimal deterrence. In the US, only direct purchasers or sellers have standing to claim antitrust damages, alongside some victims of ‘umbrella pricing’ (i.e. when non-cartelists raise their prices as a consequence of a competition infringement)….

Urszula Jaremba and Laura Lalikova  ‘Effectiveness of Private Enforcement of European Competition Law in Case of Passing-on of Overcharges: Implementation of Antitrust Damages Directive in Germany, France, and Ireland’ (sic) (2018) Journal of European Competition Law & Practice 9(4) 226

The  EU Damages Directive sets out that the goal of private enforcement is compensation – claimants should be neither over- nor under-compensated, which means that the passing on of overcharges can be invoked both as a shield (for the defendant in the proceedings) and as a sword (by indirect purchasers). The authors seeks to determine whether the Directive has been correctly transposed by Member States, and assess how the Directive’s rules on passing on have affected the relative position of the parties and the role of national courts in competition damages claims in the EU. The paper, which can be found here, is structured as follows: First, the paper describes how passing on has been treated under EU law over time. In doing so, the article reviews the CJEU’s case law (mainly Courage and Manfredi) and the Commission’s work leading to the adoption of the Damages Directive. Section 2 briefly deals with the contents EU Damages Directive as regards passing on,…

Joshua P. Davis and Robert H. Lande on ‘Restoring the Legitimacy of Private Antitrust Enforcement’ in A Report to the 45th President of the United States (American Antitrust Institute’s Transition Report on Competition Policy), Chapter 6, page 219

This report, which can be found here, argues against the increasingly prevalent view that class actions are little more than legalised blackmail, and that class action lawyers are ambulance chasers rather than private attorneys general. The paper submits that there is no systematic empirical support for the view that frivolous antitrust litigation is a serious problem, and present a defence of the benefits of private antitrust enforcement. The paper is structured as follows: A first section argues that private antitrust cases are a critical component of effective antitrust enforcement. Government cannot be expected to do all or even most of the necessary competition enforcement. In addition to budgetary constraints, there are a number of reasons for this – including “undue fear of losing cases; lack of awareness of industry conditions; overly suspicious views about complaints by ‘losers’ that they were in fact victims of anticompetitive behavior; higher turnover among government attorneys; and the unfortunate, but undeniable, reality that government enforcement (or…