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…

Cento Veljanowski “Credit Cards, Counterfactuals, and Antitrust Damages” Journal of European Competition Law & Practice (2018) 9(3) 146–160

This paper – which can be found here – provides an overview of the UK MasterCard litigation. Mr. Veljanowski is likely very well placed to discuss this:  he was one of the two economic experts involved in a case recently decided by the CAT on the matter. He also seems to publish a paper about every court decision concerning the MasterCard litigation (see my post of 24 March 2017, regarding the Arcadia v MasterCard case). The paper begins with a quick overview of the MasterCard litigation. As a result of the European Commission’s MasterCard decision, there are currently about 25 separate standalone and follow-on retailer actions making their way through the English courts concerning MasterCard and Visa’s card systems’ interchange fees. The first decision in these cases was adopted by the CAT last year (Sainsbury v MasterCard). The second one was the Arcadia v MasterCard case I posted about on 10 February. There are also more recent decisions by the…

Eckart Bueren and Florian Smuda ‘Suppliers to a sellers’ cartel and the boundaries of the right to damages in U.S. versus EU competition law’ (2018) European Journal of Law and Economics (2018) 45(3) 397

This article – which can be found here – looks at the loss that suppliers to a downstream sellers’ cartel can suffer as a result of that cartel, and asks whether they are / should be entitled to claim damages for this loss. The paper is structured as follows: It first identifies three economic effects that determine whether suppliers will suffer losses due to a cartel in which their customers participated: quantity, price and cost effects. The quantity effect is a consequence of cartelised prices, which reduce sales and, hence, the amount of supplies needed to produce the cartelised good or service. The price effect is equivalent to the lower price of input products that will result from the reduced demand by cartelists caused by the quantity effect, multiplied by the number of input units sold. And the cost effects reflect the difference in costs of producing a lower number of supply units (e.g. as a result of loss of…

Cento Veljanovski ‘The law and economics of pass-on in price fixing cases’ European Competition Law Review (forthcoming)

This paper – which can be found here – deals with the the passing-on defence. Background A bit of context may be in order here. “Passing-on” is the passing of damage suffered by a victim of a cartel to other parties, usually by increasing the price of re-sale of the cartelised goods or of the products for which the cartelised good is an input. Passing on may be invoked by an indirect purchaser in order to claim harm suffered by himself as a result of overcharges on the purchases of products or services from direct customers of the cartelist or from companies which have incorporated goods affected by the infringement into their own products or services: this is passing-on as a “sword”. Alternatively, and more commonly, pass-on may be raised as a defence to claims for damages on the ground that the claimant has incorporated overcharges, or part of them, in its downstream prices of products or services, thus reducing its…

James Segan ‘When is an antitrust/competition claim caught by an arbitration clause? The Microsoft Mobile decision’

This is a link to a short blog post  which looks at the interpretation of arbitral clauses and their applicability to antitrust disputes. It provides a good overview of the law as it stands in Europe and the UK. Shortly: a typical arbitration clause will usually say that all disputes arising out of a contract should be subject to arbitration. Since “the parties likely intended any dispute (contractual or tortious) arising out of the relationship into which they have entered or purported to have entered to be decided by the same tribunal”, this could be interpreted as subjecting to arbitration any claims about over-pricing paid in the context of an agreement containing such a clause, even if the damage was caused by a cartel. However, the law is that competition law claims will be regarded as coming within an arbitration clause only if they are closely related factually to a viable contractual claim which has already been, or could be,…

Damien Geradin and Emilio Villano ‘Arbitrability of EU Competition Law-based Claims: Where Do We Stand After the CDC Hydrogen Peroxide Case?’ (2017) World Competition 40(1) 67

This paper – which you can find here – focuses  on the arbitrability of competition law in Europe. The paper is clearly concerned with the implications of the European courts’ decisions in the CDC Hydrogen Peroxide case, but also takes the opportunity to take a deeper look at the interface between arbitration and competition law. The paper begins by acknowledging that it is consensual that Articles 101 and 102 TFEU are fully arbitrable, but then moves on to assess whether other competition provisions of the Treaty on the Functioning of the European Union, i.e. Articles 106 to 108, as well as in secondary EU competition legislation (e.g. the EU Merger Control Regulation) are arbitrable as well. The article is divided into three parts: With a brief detour into the United States, section 2 discusses the progressive recognition by national and EU courts of the arbitrability of EU competition law, and discusses outstanding questions regarding the arbitrability of EU competition law….

Wouter Wils ‘Private Enforcement of EU Antitrust Law and Its Relationship with Public Enforcement: Past, Present and Future’ (2017) World Competition 40(1) 3

This paper – which can be found here – provides a short history of private enforcement of EU antitrust law and of its relationship with public enforcement. The paper is structured as follows: Chapter 2 looks at the situation before 2003, a period during which courts established that the Treaty’s competition provisions have direct effect and create rights for individuals, even as public enforcement predominated. Chapter 3 reviews the changes brought about by Regulation 1/2003, that allowed NCAs and national courts to fully implement competition law (up until then, the system required exceptions under Art. 101(3), which concerns efficiencies, to be approved by the European Commission). This Regulation contained a number of provisions that: (i) in line with Masterfoods, obliged NCAs and national courts to follow prior Commission decisions on antitrust infringements; and (ii) set up mechanisms for cooperation between the European Commission, NCAs and national courts concerning the private enforcement of antitrust rules. However, Regulation 1/2003 ultimately led to increased…

Jens-Uwe Franck and Martin Peitz ‘Toward a Coherent Policy on Cartel Damages’ (2017) ZEW Discussion Paper No. 17-009

This paper – which can be found here – looks at who should have standing in private cartel damages claims. It is an economics paper, so it engages in a normative / most-efficient analysis of who should have standing to claim damages for antitrust infringements. It also looks into both the US and EU’s legal system in detail, to see whether / how their proposal could work. Their main argument is that cartelists should also be liable for damages caused to firms that supply the cartel or the cartel’s customers with complementary product components. What connects these classes of firms is that they may suffer a loss due to cartel‐induced underpayment. In response to the cartel’s output reduction, they may find it a profit‐maximizing strategy to lower their prices to mitigate the decline in demand, thereby effectively reducing the damage to the cartel’s purchasers. In particular, the authors develop a model which purports to demonstrate that the allocation and distribution of…

Damien Geradin and Emilio Villano ‘Arbitrability of EU Competition law-based claims’

First circulated on 28 October 2016   This paper provides an interesting overview (if for lawyers only) of the arbitrability of EU competition law. It was published in World Competition, and can be found at https://www.kluwerlawonline.com/abstract.php?id=WOCO2017004. Very pro-arbitration, as is usual among those who write about it (usually because people who write about arbitration are engaged in arbitration as party representatives or arbitrators). Comprehensive, and of undoubted value to anyone interested or involved in this area.