Source: Article on Private Damages in EU Competition Law and Commercial Arbitration by Miriam Driessen-Reilly; published in Arbitration International 2015; dos:10.1093/arbint/aiv007 – Oxford University Press (http://arbitration.oxfordjournals.org/content/31/4/567.full?ijkey=cXUsH99aZt9wdRE&keytype=ref)
© Miriam Driessen-Reilly 10 June 2014
On 24 April 2014, the Council of the European Union adopted one amendment to the European Commission’s proposal[1] for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and the European Union (“the Directive”). This followed a number of informal contacts between the Council, the European Parliament and the Commission, whereby an agreement was reached between the institutions at first reading[2] and a legislative resolution reflecting this adopted by the European Parliament.[3] In the context of the ordinary legislative procedure, the text will now be sent back to the Parliament for adoption at a plenary session. It is foreseen that following the inter-institutional agreement, the Directive will be adopted with very minor adjustments following legal linguistic finalisation.
Even before the Directive comes into effect, any person or firm affected by anti-competitive behaviour in the EU can, at least in theory, bring the matter before the courts of the Member States and seek damages. However, there are two main reasons why the Directive was considered necessary. To begin with, even though the case law upholds the right to claim damages for antitrust infringements, in practice in many Member States it has been very difficult to pursue such claims through the courts. As noted in the Commission’s 2005 Green paper,[4] there are various obstacles within the Member States, which prevent, to a greater or lesser extent, the possibility to successfully obtain damages for harm caused by an infringement of the EU competition rules. These obstacles were found to relate to, inter alia: obtaining the evidence needed to prove a case; an absence of clear rules on the passing-on defence; the absence of a clear probative value of national competition authority decisions; the possibility to bring an action for damages after a competition authority has found an infringement and how to quantify antitrust harm. As such, the Directive sets out some minimum ground rules in order to level the playing field across the Member States with a view to making it easier to actually pursue such actions and claims successfully.
Following the uncertainty that prevailed following the Pfleiderer case,[5] the Directive also aims to regulate the interplay between public and private enforcement of European competition law in such a way that effective private enforcement will not undermine effective public enforcement. Rather, the two forms of enforcement should complement each other.
On a broader level, the Directive not only aims to make it easier to obtain damages through the courts. Rather, it has incorporated specific provisions to promote the effective use of consensual dispute resolution as an alternative route to enabling the victims of EU competition law infringements to obtain compensation.
This paper discusses the provisions of the Directive, likely to be adopted by the end of the year, in terms of its potential impact on the use of arbitration to obtain private damages within the EU. It outlines and analyses the legislative framework in relation to the public and private enforcement of EU competition law within the EU, the possibility to arbitrate EU competition law infringements and arbitration of EU competition law in practice. In this context it also examines the pros and cons inherent to the regulatory framework established for the pursuit of private damages through litigation versus arbitration. It then outlines and discusses both the provisions of the Directive in relation to consensual dispute resolution and some of the most relevant and noteworthy other provisions of the Directive, in particular with regard to their potential impact on the arbitration of cases involving EU competition law infringements. Finally, the paper concludes on the potential for arbitration in the future and whether the Directive is likely to have much of an impact in this regard.
II. Private versus public enforcement
Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’) have direct effect in the various Member States of the EU.[6] Furthermore, in the context of the decentralisation of EU competition law, Regulation 1/2003[7] provided that, in addition to the Commission, the national competition authorities and the national courts have the explicit power to apply Articles 101 and 102 TFEU. As such, there is a two-fold possibility for public enforcement of EU competition law: either by the national competition authorities or by the Commission.[8] In parallel, private enforcement is possible with the empowerment of the national courts to apply directly all the competition provisions of the Treaty.
In this context, Article 15 of Regulation 1/2003 sets out a framework enabling close co-operation between the Commission and the national courts.[9] This provision enables a national court to request the Commission to send it information in its possession or indeed for its opinion concerning the application of the EU competition rules whenever it is deliberating itself on an issue of EU competition law. On the other hand, whenever a national court delivers a judgement on the application of Article 101 or 102 TFEU, the relevant Member State must forward a copy of this to the Commission after it has been notified to the parties. There is also a possibility for both national competition authorities and the Commission to submit ‘observations’ to a national court when it is deliberating on the application of Articles 101 or 102.[10]
In order to ensure coherence, co-operation between the national courts and the Commission is complemented by the terms of Article 16 Regulation 1/2003. This ensures that, when ruling on EU competition law, any decision of a national court may not run counter to a decision already taken by or in the process of being taken by the Commission.[11] Indeed, in these circumstances the national court is invited to assess whether it is necessary to stay its proceedings. The same reasoning applies to the national competition authorities,[12] in the sense that their decisions may not run counter to any decision adopted by the Commission.
In terms of private enforcement through the courts, Article 6 of Regulation 1/2003 succinctly provides that ‘National courts shall have the power to apply Articles 81 and 82 of the Treaty’, with the understanding that the Courts are empowered not only to apply Articles 81 and 82 (now Article 101 and 102 TFEU), but also article 81(3) (now Article 101(3) TFEU).[13] In practice, the national courts can be confronted with private actions pursuing EU competition law infringements in the following circumstances:
- Any natural or legal person affected by an infringement of EU competition law can take a direct (so called ‘stand-alone’) action against the infringer in a national court, whereby they will have the burden of proof to prove the alleged infringement[14] and, if successful, may claim damages.[15]
It appears that such actions occur frequently in certain EU member states, but more particularly in actions for injunctive relief.[16] Such cases involve, in particular, vertical restraints (such as resale price maintenance or exclusive distribution agreements) but also cases of unilateral conduct involving the abuse of dominance under Article 102 TFEU and to a lesser extent, but increasingly so, hard-core cartel cases under Article 101 TFEU.[17]
- Similarly, it may happen that a national court seized of a more general commercial dispute will find itself presented with a defence based upon EU competition law.
- Alternatively, following the public enforcement of a case, the victim of an infringement can bring a claim for damages before a national court.[18] According to one study, a majority of damages actions are in fact such follow-on actions.[19]
On this last point, it was the uneven playing field across the EU in terms of the rules enabling the pursuit of damages through follow-up private damages actions that prompted the Commission to initiate legislation on the matter.[20] Indeed, the focus of the Directive is on ‘actions before national courts’, whereby an ‘action for damages’[21] is defined to be a claim for damages brought before a national court. On the other hand, as discussed below, the Directive is also specifically open to enabling parties to secure damages through out of court settlements and consensual dispute resolution, including arbitration. This is an interesting development because Regulation 1/2003 itself does not mention arbitration anywhere. Indeed, in the context of the private enforcement of EU competition law, that Regulation focuses exclusively on the empowerment of national courts to apply the relevant provisions of the Treaty. Before examining the practical consequences of the exclusion of arbitration from Regulation 1/2003, however, I will first discuss a preliminary question: whether it is possible to arbitrate EU Competition law at all.
III. Is it possible to arbitrate EU competition law?
In short, it is possible to arbitrate EU competition law.
Not long ago, it was considered that it was not possible to arbitrate competition law at all. In the United States this changed in 1985 with the Mitsubishi[22] case, which, despite earlier jurisprudence on the subject,[23] found that the international nature of the undertaking at issue (a joint venture between Chrysler International S.A. and the Japanese corporation Mitsubishi) necessitated that an arbitration clause be enforced, including the antitrust claims under the Sherman Act.
The seminal case for the EU is the Eco Swiss Case, which dates from 1999.[24] This case concerned a reference to the European Court of Justice (“ECJ”) under Article 234 EC (now 267 TFEU) by the Supreme Court of the Netherlands (Hoge Raad). The reference related to the Court’s interpretation of the nature of Article 85 EC (now 101 TFEU) in the context of, inter alia, an application to the Dutch court for the annulment of an arbitration award on the grounds of its non-compatibility with public policy. More particularly, in the context where an arbitral tribunal had awarded damages to Eco Swiss China for breach of a licensing agreement by Benetton,[25] Benetton had applied to the Dutch court for the annulment of the award on the basis that the agreement in question itself infringed Article 101 TFEU, given that it incorporated a geographical market-sharing agreement. Reflecting the terms of the New York Convention of the Recognition and Enforcement of Arbitral Awards 1958 (hereinafter: ‘the New York Convention’), Article 1065 of the Dutch Civil Code provided that an annulment of an arbitral award could only be ordered on specific grounds, inter alia because ‘the award or the manner in which it has been made is contrary to public policy or accepted principles of morality’. One of the main questions, which arose therefore, was whether infringement of the competition provisions of the Treaty could be considered to be a breach of public policy. The Dutch Court had come to the conclusion that allowing the enforcement of an arbitral award that contravened Dutch competition rules would not be regarded as contrary to public policy. However, as this case concerned the contravention of (then) EC competition law, the question arose whether, in light of ECJ case law, that would be the same.
By way of background, the competition law aspect had not in fact been raised by either of the parties during the course of the arbitration procedure and, therefore, the Dutch Court took the view that in such circumstances the arbitrators would have gone beyond their terms of reference in raising it themselves.[26] In international commercial arbitration, arbitrators are under an obligation to decide solely on issues within the terms of the submission to arbitration. Failing this, Article V of the New York Convention provides that recognition and enforcement of the award may be refused at the request of the party against whom it is invoked. Indeed the Dutch Court noted that the award could have been annulled under the Dutch Civil Code for that very reason.
On the question whether a national court or tribunal should raise a point of law on its own motion, the ECJ had previously found in Van Schijndel and Van Veen v SPF[27] that in a civil suit it is for the parties to take the initiative and the court or tribunal should only act of its own motion in exceptional cases where the public interest requires its intervention.[28] One question therefore was whether, notwithstanding the constraints described above, arbitrators would be obliged to act on their own motion to apply the terms of EU competition law to a dispute before them. Would a court be obliged to annul an award on the grounds that the award was contrary to Article 101 TFEU? And should a court allow such a claim even where none of the parties had raised it during the arbitration proceedings?
The ECJ found that, where questions of Community law are raised during an arbitration, the ‘ordinary’ courts may have to examine those questions, more particularly during a review of the arbitration award in the context of an appeal for setting aside or leave to enforce an award or any other form of action or review available under the relevant national legislation. It is for those courts to determine whether it is necessary to request the ECJ for an interpretation under Article 267 TFEU[29] when assessing the provisions of EU law, which they may need to apply when reviewing an arbitration award. However, whilst the ECJ acknowledged that it is in the interest of efficient arbitration proceedings that the review of arbitration awards should be limited in scope and that annulment of or refusal to recognise an award should be possible only in exceptional circumstances, it noted that Article 101 TFEU is a fundamental provision ‘essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market’. The importance of this is reflected in the Treaty, which provides expressly that any agreements or decisions prohibited pursuant to that article are to be automatically void. As such, it found that Article 101 TFEU comes within the terms of the public policy exception. It also went on to find that this conclusion is not affected by the terms of the New York Convention[30] because Article 101 TFEU can be regarded as a matter of public policy within the meaning of that Convention.
Last, but not least, whilst unlike the national courts, arbitrators are not in a position to request a preliminary ruling on the application of EU law under Article 267 TFEU,[31] the ECJ found it ‘manifestly in the interest of the Community legal order that, in order to forestall differences of interpretation, every Community provision should be given a uniform interpretation, irrespective of the circumstances in which it is to be applied’.[32] It found that in the circumstances of the Eco Swiss case (which could be distinguished from those in Van Schijndel and Van Veen),
‘Community law requires that questions concerning the interpretation of the prohibition laid down in Article 85(1) of the Treaty should be open to examination by national courts when asked to determine the validity of an arbitration award and it should be possible for those questions to be referred, if necessary, to the Court of Justice for a preliminary ruling’.
On that basis, a national court seized of an application for annulment of an arbitration award must grant that application in line with its national rules of procedure if it considers that the award in question is contrary to Article 101 TFEU and therefore contrary to national rules of public policy.
The crux of this decision is that arbitrators examining a case involving EU competition issues are essentially bound to raise the issue in the course of proceedings, even where this has not been raised by the parties themselves, the reason being that, should they fail to do so, the award may be open to challenge in any potential subsequent review of the award by an EU member state court. As such this is an indirect obligation. In this regard, by way of analogy, it is interesting to note that Article V (2) of the New York Convention can be interpreted to provide that refusal to recognise and enforce an award on the grounds of public policy may be invoked by the court of that place on its own motion.[33] Today it is commonly understood that arbitral tribunals confronted with issues of EU competition law have an incentive to raise such issues themselves if ‘concerned about potential challenges to and ultimate enforceability of their awards in Europe’.[34] In practical terms, this would potentially apply to any case seated within the EU, as an award may be set aside under the terms of the New York Convention if found contrary to the public policy of the seat. It would also apply where the substantive law of the contract is of any EU member state and indeed where the award is subject to enforcement within any part of the EU.[35] The enforcement aspect within the EU is also relevant even if the arbitration itself is seated outside the EU or governed by other laws.[36]
As such, in relevant circumstances it is not just possible to arbitrate EU competition law issues, it is actually essential to consider EU competition law within a given arbitration.
IV. Arbitration of EU competition law in practice
It is in the context of the Eco Swiss case that it is now generally understood that an arbitral tribunal can, and indeed in appropriate circumstances is, obliged to apply the terms of Articles 101(1), 101(2) and 102 TFEU to a case. With the implementation of Regulation 1/2003, it is also commonly understood that an arbitral tribunal can and indeed should also apply the terms of Article 101(3), although previously, under the terms of Regulation 17/62,[37] this had been under the sole jurisdiction of the Commission.[38]
As outlined above, in the case of a competition law infringement, a party has several choices in terms of how to proceed. However, in addition to private enforcement of EU competition law through the courts, the private enforcement of EU competition law may also arise in the following situations:
- It may, as in the Eco Swiss case, come up in the context of a commercial dispute in the course of an arbitration proceeding (or may not come up, but nevertheless be an issue). Typically, this would be used as a defence against the applicant. However, as discussed above, even if not raised by the parties themselves, since Eco Swiss, there has essentially been an indirect obligation on the arbitral tribunal to consider the application of EU competition law to any given case and in practice, in order to ensure the enforceability of the award, the arbitral tribunal will have to do so where the arbitration is seated anywhere in the EU, where the applicable law of a contract (lex loci contractus) is that of any EU member state, or where the award will be enforced within any part of the EU.
As most commercial arbitrations take place subsequent to a contractual dispute, in the context where a contract has incorporated an agreement to arbitrate, this would seem to be one of the most likely current scenarios in which an arbitrator will find him or herself dealing with the interpretation of EU competition law provisions.
- In general terms, however, the ability to arbitrate a case depends either on the existence of a sufficiently broad pre-existing agreement to arbitrate or on the willingness of both parties to enter into such an agreement. The former is more likely to occur where the parties are already in a contractual relationship, for example, as between a supplier and a buyer or in the context of a joint venture. Where a supplier has been involved in a cartel in breach of Article 101 TFEU, for example, it may be possible for the parties to take the issue to arbitration where the scope of the relevant arbitration agreement is broad enough to cover not only actions in contract, but also actions in tort. There would be no such pre-existing contract in place between a supplier (found to have participated in a cartel) and its indirect purchasers however. Therefore an arbitration in this scenario is less likely, unless both the supplier and indirect purchaser(s) would find a distinct advantage in going to arbitration, which would necessitate them entering into an agreement to arbitrate post finding of the infringement. However, the same reasoning applies to other kinds of infringements of competition law. Where no pre-existing agreement to arbitrate exists, arbitration is generally possible where all parties agree to it[39] and this may occur where the parties would find it advantageous to choose arbitration over litigation. In this regard, the ability to nominate an arbitrator with the requisite profile, to have an up-front influence over the nature of the procedure, to ensure absolute confidentiality of both the proceedings and the award, to choose a neutral seat and to have the issue dealt with within a short timeframe, may be selling points to many parties seeking damages in cases involving an EU competition law infringement. Given the confidential nature of arbitration, the extent to which this is currently the case is unclear however.
- It should also be mentioned that the Commission itself makes provision for the use of arbitration in the context of many of its commitment decisions issued for behavioural remedies approved under the terms of the European Merger Control Regulation.[40] This is a rather special form of arbitration, which gives third parties the right to oblige the party subject to the commitments to enter into an arbitration in order to ensure the object of the commitment (g., third-party access rights to an essential facility). As can be seen from the public version of relevant decisions,[41] in such cases, the Commission generally provides for short and strict deadlines (in the tradition of the Merger Regulation) and may reserve for itself the possibility to get involved in the arbitration procedure, in terms of full information throughout the procedure and for the potential participation of the Commission’s Legal Service at the hearing. However, this can be seen as a kind of ‘sui generis’ or ‘regulatory’ arbitration subject to the Commission’s prerogatives of public enforcement of the Treaty provisions on competition law.
V. Litigation versus arbitration
Given the very specific framework in place concerning co-operation between the Commission, the national competition authorities and the national courts and the apparent advantages for the courts both in terms of gaining access to information held by the Commission and the ability to make a reference to the ECJ on a point of EU law, the use of arbitration as a means of private enforcement is not without its particularities. As alluded to above, by virtue of an ECJ judgment dating from 1982,[42] an arbitral tribunal is not considered a court or a tribunal for the purposes of Article 267 TFEU of the Treaty and may not make a reference for a preliminary ruling to the ECJ.[43] As such, taken together with Regulation 1/2003, in terms of the framework for co-operation between the national courts and the Commission, an arbitral tribunal is more alone in the sense that it may not when seized with a dispute incorporating an EU competition law issue make any referral on a point of law to either the Commission or the ECJ. Nor will it have access to information on the Commission’s file in the same way a national court does. On the other hand, by virtue of the nature of arbitration, which is a consensual, private and usually highly confidential process, the Commission will not even be aware that a case involving an infringement of EU competition law has gone to arbitration. Nor will it be able to make any representations to the tribunal on questions of law or fact, either in writing or by oral submissions, as it would do where a case is litigated before a national court.[44] Finally, the contents of the award are usually kept confidential.[45] The only point of contact with a national court is potentially an application by one of the parties for an interim injunction or an application to have the award set aside on the basis of one of the few exceptions allowed in domestic arbitration laws or listed in the New York Convention (including the public policy exception). However, depending on the lex arbitri, the arbitral tribunal may be able to make a reference on a point of law to a national court at the seat of the arbitration. That Court may make a reference to the ECJ under Article 267 TFEU. See in this regard, for example, Section 45 of the Arbitration Act 1996.
Is the arbitral tribunal bound in the same way as a national court when it comes to ensuring that its award does not fly in the face of any previously taken Commission decision related to the case? Indeed, what is the arbitral tribunal to do when faced with the situation that the case with which it finds itself presented is in the process of being investigated and deliberated upon by the Commission? Do the terms of Article 16 of Regulation 1/2003 apply to an arbitral tribunal by analogy, even though its terms are solely addressed to the national courts and competition authorities? According to the ECJ in the Nordsee case, an arbitral tribunal is not a court in the sense of the Treaty and is therefore not bound by the ‘duty of loyal cooperation’. Nonetheless, it would seem odd to envision a situation where an arbitral award would take a position contrary to one already taken by a competition authority, whether national or the Commission, particularly where a court of law would be bound to respect it or at least treat it as prima facie evidence of an infringement.[46] The tribunal could in theory stay its proceedings pending the outcome of any competition authority investigation and decision, although this could significantly extend the length of time required to arrive at an award, which may remove one of the incentives from choosing to go to arbitration in the first place. Taking account of the Eco Swiss reasoning, should there be a substantial divergence between a decision issued by an authority and the arbitral award, there is a potential for any such award to be set aside by a national court at the seat of the arbitration on the basis of non-compliance with public policy, in which case it will be possible for any other court at a place of enforcement to refuse to recognise and enforce it.[47]
The implication for choosing arbitrators experienced in dealing with EU competition law is clear.
VI. The Private Damages Directive and ‘Consensual Dispute Resolution’
In the Practical Guide to quantifying harm in actions for damages based on breaches of Article 101 or 102 of the TFEU,[48] the Commission had noted that while civil actions for compensation are generally adjudicated by national courts, actions for damages can also be decided by arbitral tribunals and by courts of non-EU states.[49] This would also appear to be reflected in the provisions of the associated Communication,[50] which notes that a major difficulty encountered by ‘courts, tribunals and parties’ in damages actions, is how to quantify the harm suffered.[51]The use of arbitration is also now specifically mentioned within the text of the Directive, as the Directive incorporates a specific provision on ‘consensual dispute resolution’. The preamble notes that actions for damages are ‘only one element of an effective system of private enforcement of infringements of competition law and are complemented by alternative avenues of redress, such as consensual dispute resolution.’ Moreover, parties should be encouraged to agree on compensation through consensual dispute resolution mechanisms, such as ‘out of court settlements (including those where a judge can declare a settlement binding), arbitration, mediation or conciliation’ and consensual dispute resolution is itself defined as ‘any mechanism enabling the parties to reach an out-of-court resolution of a dispute concerning compensation for harm.’[52]
With a view to optimising the balance between such out-of-court settlements and actions before the courts, the Directive therefore incorporates certain provisions, the aim of which are to facilitate the use of such mechanisms and increase their effectiveness. In this context it provides for:
- The suspension of limitation periods for bringing actions for damages as long as the infringing undertaking and the injured party are engaged in ‘consensual dispute resolution’, such suspension only applying as regards those parties that are or were involved or represented in the consensual dispute resolution.
- Without prejudice to the provisions of national law ‘in matters of arbitration’, the suspension of pending proceedings in national courts for the duration of ‘consensual dispute resolution’ for a maximum of up to two years.
- The reduction of the settling injured party’s claim by the settling co-infringer’s share of harm. For the remainder of the claim, the settling co-infringer can only be required to pay damages to the injured party if the non-settling co-infringers are unable to fully compensate that party, unless this is expressly excluded under the terms of the consensual settlement.
- Damages paid through consensual settlements to be taken into account by national courts when determining the contribution that a settling infringer needs to pay following any subsequent order to pay damages.
- The possibility for a competition authority to consider that compensation paid as a result of a consensual settlement reached prior to its own decision imposing a fine to be a mitigating factor in setting such fine.
Further to Article 4 of the Directive, whereas a ‘claim for damages’ means a ‘claim for compensation of harm caused by an infringement of competition law’, an ‘action for damages’ is defined to mean ‘an action under national law by which a claim for damages is brought before a national court’. As such, it would seem that an ‘action’ for damages relates to litigation before a national court, whereas a ‘claim for damages’ encompasses something broader, including by implication damages sought through consensual dispute resolution. In any case, the Directive clearly foresees resort by the parties to the use of arbitration. However, to what extent will the provisions of the Directive have an impact on the use of arbitration in such disputes? Each of the above provisions is examined below.
A. Suspension of limitation periods for bringing actions for damages
Article 18 of the Directive provides that the limitation period for bringing an action for damages will be suspended for the duration of the consensual dispute resolution process.
In practice, where a pre-existing agreement to arbitrate exists, there is an obligation to go to arbitration, rather than a choice between litigation and arbitration. An arbitration procedure will normally result in a final award, which may award damages, and which may only be challenged on very narrow grounds. Any challenge will deal with the validity of the award, but will not allow for fresh argumentation on the grounds for damages in order to seek an alternative judgment given that the final award of an arbitral tribunal is generally res judicata. Article 18 of the Directive is therefore more related to cases that go first to mediation or conciliation as a preliminary manner of resolving the dispute, rather than arbitration. Mediation and conciliation, whilst effective in practice, can be followed by litigation, as the result of such processes are usually non-binding.
B. Suspension of pending proceedings for the duration of consensual dispute resolution
Article 18 of the Directive also provides that ‘without prejudice to provisions of national law in matters of arbitration’ national courts seized with an action for damages may suspend proceedings where the parties to such proceedings are involved in related consensual dispute resolution.
Clearly, it will be a pre-requisite that a case has already been brought to court for this article to apply. This implies that there was no pre-existing agreement to arbitrate, as otherwise the case would have gone to arbitration. The provision is therefore more likely to apply to cases where the parties opt for mediation or conciliation.
In theory, the provision could potentially be applicable in the case where there is an ex-post agreement to arbitrate, although this would seem to be unlikely where litigation has already commenced and given that any arbitration would result in an award, that would then preclude the jurisdiction of the national court to deal with the case, other than on appeal to have the award set aside.
C. Reduction of the settling injured party’s claim by the settling infringer’s share of harm. Damages paid through consensual settlements to be taken into account by national courts when determining the contribution that a settling infringer needs to pay following a subsequent order to pay damages
In the words of the Directive, ‘a settling infringer should in principle not contribute to his non-settling co-infringers when the latter have paid damages to the injured party with whom the first infringer had previously settled’ and as a correlate to this the injured party’s claim will be reduced by the settling infringer’s share of the harm caused to him, ‘regardless of whether the amount of the settlement equals or is different from the relative share of the harm that the settling co-infringer inflicted upon the settling injured party.’[53] This ensures that the non-settling infringers will not have to make up to the injured party for any gap between the amount of the settlement and the share of the damage caused by the settling party. However, following a consensual settlement, the remainder of the claim is exercisable by the injured party only against the non-settling co-infringing parties. There is no recovery of any contribution for this from the party that ‘settled’, unless the other co-infringers cannot pay (although any such action can be expressly excluded under the terms of the consensual settlement). However, even where a contribution is required to the non-settling infringers, the Directive notes that a national court should avoid that the total amount of compensation paid by the settling co-infringers exceeds their relative responsibility for the harm caused by the infringement and should therefore take account of the damages already paid under the consensual settlement.
The implication of the Directive is therefore that, absent any express exclusion clause incorporated into the terms of a ‘consensual settlement’,[54] damages awarded as the result of arbitration (or mediation/conciliation), will only be in full and final settlement of the infringement where the other co-infringers (e.g. cartelists) are in a financial position to fully compensate the injured party. This is linked to the principle of joint and several liability as outlined in Article 11 of the Directive. Indeed, the default rule (absent consensual dispute resolution) is that the members of an infringement, such as a cartel, are held jointly and severally liable for the damage caused by the infringement of competition law.[55] Therefore, subject to special limitation rules for small and medium-sized enterprises and leniency procedure immunity recipients,[56] each of the infringing undertakings is liable to compensate the injured party in full, but may recover a contribution from any other co-infringer, such contribution being linked to the infringers relative responsibility for the harm caused by the infringement.
In the context of joint and several liability, the ECJ recently confirmed in a cartel case, that the Commission’s (public enforcement) power to impose penalties is confined to determining the overall amount of the fine, but this does not extend to determining the share of that amount to be borne by those persons who are jointly and severally liable in the context of their internal relationship.[57] Furthermore, in an associated case, the ECJ noted that ‘the power to determine how a fine imposed jointly and severally is to be allocated internally rests with a national court or arbitration panel, not with the Commission’.[58] Whereas this passage refers to the determination of the relevant share of joint and severable liability as between the legal entities making up an infringing ‘undertaking’, the Directive now clarifies that the concept of joint and several liability also applies in the context of private enforcement as between the various co-infringing undertakings within any given infringement. Indeed, one preliminary aspect of adjudicating on an action or claim for private damages, whether the relevant forum be a court or an arbitral tribunal, will be the relative share of damages for which each of the co-infringers will be held liable.
Article 19 refers to the effect of consensual settlements on subsequent actions for damages, which would seem to refer to the courts. However, where the parties would choose to enter into arbitration rather than go through litigation, the issue of joint and severable liability between the co-infringers still raises its head. The question may therefore potentially arise whether it would be possible to deal with related arbitrations as a whole by entering into a complex multi-party arbitration under the rules envisaged by agreement. This would seem to be a possibility under the rules of the London Court of International Arbitration (LCIA),[59] the ICC’s International Court of Arbitration[60] and other institutions such as the Belgian Centre for Arbitration and Mediation (CEPANI)[61] or the Stockholm Chamber of Commerce (SCC). [62]
D. The possibility for a competition authority to reduce a fine following a consensual settlement
Article 18(4) also allows a competition authority to consider that compensation paid further to any consensual settlement prior to its decision issuing to be a mitigation factor in the setting of the fine. In practice, it remains to be seen how often this provision will be used, given that most actions for damages appear to be follow on actions and that many ‘consensual settlements’ relating to damages are likely to take place after a public enforcement decision has been issued, rather than the other way around.
VII. Other Noteworthy provisions of the Private Damages Directive
Some other provisions of the Directive are worth mentioning, although they are not specifically related to consensual dispute resolution. These are examined below.
A. Probative Effect of National Decisions
Article 9 of the Directive provides that in cases dealt with by the national courts, which are already the subject of a final infringement decision by a national competition authority or a review court, the courts of the member state where the decision was issued will treat such decisions as ‘irrefutably established for the purposes of an action for damages’. This clearly complements the terms of Regulation 1/2003, Article 16 of which ensures that, when ruling on EU competition law, any decision of a national court may not run counter to a decision already taken by or in the process of being taken by the Commission.[63] This is also in line with the spirit of Article 4(3) of the Treaty on European Union.[64] On the other hand, a decision issued by a competition authority of another Member State will only be treated as ‘at least prima facie evidence’ that an infringement of competition law has occurred and, ‘as appropriate, may be assessed along with any other material brought by the parties’.
What does this mean for an arbitral tribunal? Should it treat a decision issued by a national competition authority or review court as irrefutable proof of an infringement? As discussed above, from the enforcement perspective there may be an incentive to do so. But should the arbitral tribunal distinguish between a decision issued by an authority or court located at the seat of the arbitration and one issued from another EU member state? In the context of an international commercial arbitration, is the decision of one competition authority or court more valid than another? If we would follow the spirit of the Directive and Regulation 1/2003, an arbitral tribunal could give more credence to infringement decisions issued at the seat of the arbitration and to those issued by the Commission, although the reason for choosing the seat is usually to ensure that the procedure is conducted in a neutral setting.
B. Disclosure and use of evidence
Article 5 of the Directive provides that national courts will be empowered to order disclosure of evidence in damages actions. In order to regulate the interplay between public and private enforcement, Article 6 also provides for limits on the disclosure of evidence from the file of a competition authority. Again, this is addressed to the national courts but, given its intent, it also pertinent for arbitration. More particularly, the courts may not order any party to disclose either leniency corporate statements or settlement submissions. However, after a competition authority has taken a decision or closed its proceedings, it will be possible to order the disclosure of information that was prepared specifically for the proceedings of a competition authority (such as replies to requests for information) and information that was drawn up by a competition authority in the course of its proceedings (such as a statement of objections). Evidence held on the file of a competition authority, which does not fall into any of the above categories, may be ordered in actions for damages at any time.
As a corollary to this, Article 7 provides for limits on the use of evidence obtained solely through access to the file of a competition authority. Specifically, implementing legislation in the Member States will ensure that, in the case that anyone should obtain leniency corporate statements or settlement submissions through access to the file of a competition authority, these will not be admissible in actions for damages. Furthermore, evidence in the second category obtained from a competition authority will not be admissible in any action for damages until that competition authority has either closed its proceedings or taken a decision pursuant to Article 5 of Regulation No 1/2003. By analogy, it is reasonable to expect this reasoning to be pertinent in an arbitration procedure. Certainly, Article 9(f) of the IBA Rules on the Taking of Evidence in International Arbitration,[65] which are frequently used in international arbitrations, provides that an arbitral tribunal shall, either at the request of a party or on its own motion, exclude from evidence or production, documents, statements, oral testimony or inspection on ‘grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution)’ that the Tribunal determines to be compelling.
Article 8 ensures that the national courts will be able to sanction in an ‘effective, proportionate and dissuasive manner’ any failure or refusal to comply with a court’s disclosure order, or indeed, the destruction of relevant evidence,[66] the failure or refusal to comply with court imposed obligations concerning protection of confidentiality or any abuse of rights relating to disclosure of evidence and information. Whilst Article 8 will ensure that the national courts can effectively sanction the parties and their legal representatives in the event of non-compliance, national courts by their nature tend to have recourse to a greater arsenal of sanctions in the event that a court order is not complied with. For example, arbitral tribunals are not generally empowered to impose any sanctions on third parties. This being said, the terms of Article 8(2) mirrors a common practice used in arbitration ‘insofar as the behaviour of a party to damages action proceedings is concerned, the possibility to draw adverse inferences, such as presuming the relevant issue to be proven or dismissing claims and defences in whole or in part, and the possibility to order the payment of costs’. Furthermore, many domestic arbitration laws provide support to arbitral tribunals in terms of the possibility to request the domestic courts for assistance, in terms of the grant of interim injunctions to preserve evidence or securing the attendance of witnesses or documents.
Of course, as discussed above, on the one hand, from the ECJ’s point of view, an arbitral tribunal is not a court. On the other hand, an arbitrator must take account of any mandatory laws of the seat of the arbitration,[67] of the law of the contract and of the envisioned place of enforcement. The Directive now creates certain procedural rules in relation to the disclosure of evidence specifically applicable to cases involving an infringement of EU competition law and the application of these rules on disclosure are arguably mandatory from a public policy perspective, because they have been drafted specifically with a view to ensure an appropriate interaction between public and private enforcement of competition law, which is a stated public law objective. As such, to the extent that these provisions can be deemed to be mandatory, in appropriate cases, arbitrators will be bound to respect them in managing the arbitration procedure. In this regard, it is arguably the case that these provisions will have an impact on the running of arbitration cases involving EU competition law issues seated within the EU or, as applicable, when the award will have to be enforced within the EU.[68] This means that the rules on disclosure to be adopted by an arbitral tribunal would in appropriate cases need to be moderated to take the mandatory provisions of Articles 5 to 7 of the Directive into account.
C. Limitation Periods
Article 10 of the Directive provides for certain harmonisation rules in relation to when limitation periods for taking an action for damages will begin to run. In particular the limitation period for bringing an action will be at least five years, not to run before the infringement has ended and the claimant knows, or can reasonably be expected to know, that the behaviour at issue constituted an infringement of competition law, that it caused him harm and the identity of the infringing undertaking. The idea is that it ‘should still be possible to bring an action for damages after proceedings by a competition authority’ and the duration of such limitation periods should not ‘render practically impossible or excessively difficult the exercise of the right to full compensation.’ The five year period mentioned is therefore a minimum and this will be suspended or interrupted for the duration of any public law investigation or proceedings undertaken by a competition authority.
This provision is not directly linked to consensual dispute settlement, as it addresses actions for damages. Should it therefore have any bearing on the parties’ freedom to arbitrate, mediate or use conciliation in relation to obtain private damages? Realistically speaking, how likely is it that parties to a contract will make use of an arbitration clause to seek damages twenty years after the end of a competition law infringement? Perhaps this is one aspect of the Directive that requires clarification.
D. Passing-on of overcharges
Articles 12 to 15 of the Directive regulate the position of the defence in terms of the ‘passing-on’ defence, that is to say that a defendant in an action for damages will be able to use the fact that a claimant has passed on in whole or in part the overcharge which results from the infringement and the Directive regulates the burden of proof in these circumstances.
As regards actions for damages by claimants from different levels in the supply chain, national courts will take into account any other actions for damages related to the same competition law infringement, but brought by claimants at other levels of the supply chain. With a view to ensuring consistency between related damages actions, they will also take into account any judgments, which have resulted from these actions.[69]
In terms of arbitration, as noted above, it also becomes more frequent, depending on the applicable lex arbitri and/or the procedural or institutional rules agreed to by the parties, that one or more related cases may be joined together as a multiparty arbitration.[70] In such cases, one of the objectives may be precisely to take into account the claims for damages made by the respective parties in associated claims.
E. Quantification of harm
Article 2 of the Directive itself confirms the definition of damages in line with previous case law, to cover the right to compensation for actual loss, for loss of profit and payment of interest. The definition specifically excludes punitive, multiple and other types of damages.
The Directive also deals very succinctly with quantification of harm. It introduces a presumption in favour of claimants in cartel infringements that the cartel did cause harm. Naturally, the defendant will have the right to rebut this presumption. In addition, national legislation will ensure that the burden and the level of proof required in order to quantify harm in a given case will not make it practically impossible or ‘excessively difficult’ for claimants to obtain damages. Furthermore, to the extent that it is not already possible, the national courts will be empowered, in line with national procedures, to estimate the amount of harm caused by an infringement. By way of comparison, an inherent part of most cases going to arbitration is an assessment of damages and associated quantification of harm. The use of experts skilled in quantification issues and economic techniques is commonly employed in complex cases. In this regard, it is interesting to note that the Directive provides for the possibility for national competition authorities to assist the national courts in determining the quantum of damages. Again, the relevant wording relates to an action for damages, which refers to litigation before the courts and therefore would not strictly include arbitration.
Outside the context of the Directive, but issued as a corollary, the Commission has previously issued a Practical Guide to quantifying harm in actions for damages based on infringements of Articles 101 and 102 TFEU.[71] This is simply a guide. Economic experts will normally be well versed in the choice of quantitative techniques available and applicable to any given scenario. However, the guidelines are particularly useful for the judiciary and arbitrators alike in explaining the techniques commonly employed by economic experts when assessing damages.
VIII. Conclusions: implications of the Directive for arbitration
As noted in the preamble to the Directive, large-scale infringements of competition law often have a cross border element. In the context of arbitration, the cross border element can potentially bring such cases into the realm of international commercial arbitration. Although there are no statistics available, many cases of arbitration already involve an assessment of EU competition law.
The Directive is likely to generally positively change the culture of seeking damages in the EU in the follow up to the public enforcement of infringements, whether through private damages actions in the courts or through arbitration, mediation or other forms of alternative dispute resolution, such as conciliation. In this context, it seems likely that we can expect to see an increase of some kind in the number of cases involving EU competition law infringements going to arbitration, not just as a defensive shield in commercial disputes, but potentially also as a sword in the context of a claim for damages in the follow up to public enforcement.
On a practical note, given that the ability to arbitrate a case depends on the existence of a sufficiently broad agreement to arbitrate, should the culture of private damages now veer more towards the use of arbitration, this may influence the drafting of arbitration agreements to cover not only actions in contract but also actions in tort.
As outlined above, the Directive has now clarified the situation in terms, inter alia, of the nature of damages which may be obtained following an infringement of EU competition law, limits on the use of evidence obtained from a competition authority’s file, the joint and several liability of co-infringers with special rules for consensual dispute resolution, SMEs and immunity applicants, the treatment of related actions by the courts, the standing of decisions issued by national competition authorities and national courts and indeed the intent of the legislature in terms of ensuring a coherent respect between the respective application of public and private enforcement. In terms of the seat of arbitration or enforcement occurring within the EU, these provisions can be expected to have an impact or influence to some extent upon the procedure, format or substance of arbitration cases dealing with or encompassing arguments involving EU competition law infringements.
© Miriam Driessen-Reilly 10 June 2014
[1] The Commission’s proposal for the Directive (COM(2013) 0404), adopted on 11 June 2013, was accompanied by Commission Staff Working Document: Practical Guide – Quantifying Harm in Actions for Damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union (Commission doc. SWD (2013)205/1 C(2013) 3440) of 11 June 2013, which can be consulted on .
The legislative file can be checked on: ; the interinstitutional reference for the legislative procedure is 2013/0185(COD).
[2] The adopted text is reproduced in doc. 8986/14 of 24 April 2014, which can be consulted on the website of the Council of the EU .
[3] See document COM(2013)0404 – C7-0170/2013-2013/0185(COD).
[4] COM (2005) 672, 19.12.2005.
[5] Case C-360/09 Pfleiderer AG v Bundeskartellamt, Judgment of the Court (Grand Chamber) of 14 June 2011.
[6] For the principle of direct effect of EU law see Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1. See also Case 127/73, BRT v. SABAM, [1974] ECR 51 paragraph 16 and Case C-282/95 P, Guérin Automobiles v Commission, [1997] ECR I-1503, paragraph 39.
[7] See Article 6 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, Official Journal of the EU (2003) L1/1.
[8] As concerns jurisdictional issues between the Commission and the national competition authorities, see the Commission Notice on cooperation within the Network of Competition Authorities (Official Journal C 101, 27.04.2004, p 43-53). In practice, within the European Commission it is Directorate General Competition (DG Competition), which is responsible for the enforcement of EU competition law.
[9] See also the Commission Notice on the co-operation and the courts of the EU Member States in the application of Articles 81 and 82 EC, Official Journal (2004) C101/54.
[10] The permission of the Court is required for a national competition authority to submit observations or for the Commission to submit oral observations.
[11] In this respect, Article 16 invites the national courts to consider whether to stay proceedings pending the issuance of the Commission decision.
[12] See Article 16 (2).
[13] For a discussion of the application of Article 101(3) by arbitrators, see Idot, ‘Arbitration and the Reform of Regulation 17/62 Courts’ in Ehlerman and Atanasiu (eds), Effective Private Enforcement of EC Antitrust Law: European Competition Law Annual 2001, Hart Publishing, Oxford 2003, p. 287. For a practical example see Blessing, Arbitrating Antitrust and Merger Control Issues, Swiss Commercial Law Series Volume 14, Bär & Karrer, Zurich and Helbing & Lichtenhahn, Basle, Geneva, Munich 2003, p. 212.
[14] See Article 2 of Regulation 1/2003.
[15] See Case C-453/99 Courage v Crehan, [2001] ECR I-6297 ; Joined cases C-295/04 to C-298/04, Manfredi, [2006] ECR I-6619 ; Case C-360/09 Pfleiderer AG v Bundeskartellamt, [2011] ECR I-5161; and Case C-199/11 European Community v Otis NV and others, [2012] ECR I-0000.
[16] Vande Walle, Private Antitrust Litigation in the European Union and Japan – A Comparative Perspective, Maklu, Antwerp 2013, p. 229.
[17] Ibid., p. 227.
[18] See paragraph 7 of the preamble to Regulation 1/2003, where it is reasoned that the national courts role in terms of damages is complementary to that of the Commission and national competition authorities and, for that reason, the national courts should have the power to apply Articles 101 and 102 TFEU in full.
[19] A.Renda, A.Riley, J.Peysner, B.Rodger, Making Antitrust Damages Actions More Effective in the EU: Welfare Impact and Potential Scenarios – Final Report for the European Commission, Centre for European Policy Studies (CEPS), Brussels, Rome and Rotterdam (21 December 2007), p 40-41.
[20] The Ashurst Study (Ashurst Study on the conditions of claims for damages in case of infringement of EC Competition rules, Brussels 2004) listed a number of obstacles to the successful award of damages through the Courts. This included factors such as judges’ lack of expertise in competition law, limitations on access to evidence, difficulties in quantifying damages and the length, cost and complexity of court proceedings. Ashurst also found that a large number of cases never proceed to judgment because they are settled out of court.
[21] Wording as used in the Directive.
[22] Mitsubishi Motors Corporation v Soler Chrysler Plymouth Inc. 473 U.S. 614 (105 S.Ct. 3346, 87 L.Ed 2d 444).
[23] American Safety Equipment Corporation v J.P. Maguire & Co., 391 F.2d 821 (CA2).
[24] Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV, [1999] ECR Page I-3055. Concerning arbitrability of competition law within the EU Member States national law, see Institute of International Business Law and Practice, Competition and Arbitration Law, ICC Publication n° 480/3, 1993.
[25] Benetton gave notice of termination of the agreement three years before the end of the period originally provided for. Arbitration proceedings were then instituted between Benetton, Eco Swiss and Bulova in relation to the termination of the agreement.
[26] In an ICC arbitration, these issues would be outlined in the ‘Terms of Reference’.
[27] Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF [1995] ECR I-4705.
[28] Reflecting conceptions prevailing in most of the Member States as to the relations between the State and the individual, safeguarding the rights of the defence and ensuring proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas.
[29] Article 267 TFEU provides as follows:
‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay’.
[30] Article V(1)(c) and (e) and II(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
[31] Case 102/81 Nordsee v Reederei Mond [1982] ECR 1095.
[32] Case C-88/91 Federconsorzi [1992] ECR I-4035, paragraph 7.
[33] Blackaby and Partasides, Redfern and Hunter on International Arbitration, Oxford University Press, Oxford 2009, p. 639.
[34] Ibid, p. 205.
[35] See Article V.2.b of the New York Convention, whereby recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that ‘(b) the recognition or enforcement of the award would be contrary to the public policy of that country’.
[36] See ICC case 8626, where the case was subject to New York law and seated in Geneva.
[37] Regulation No 17 implementing Articles 85 and 86 of the Treaty, Official Journal English Special Edition Series I, Vol. 1959-1962, p. 87.
[38] See footnote 14 above.
[39] This may depend on the lex arbitri.
[40] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) Official Journal L 24, 29.01.2004, p. 1.
[41] See for example Case No COMP/ M.5984 Intel/ McAfee p 69.
[42] Case 102/81 Nordsee v Reederei Mond [1982] ECR 1095.
[43] See paragraphs 10 to 12 of that judgment, which finds that an arbitration tribunal constituted pursuant to an agreement between the parties is not a `court or tribunal of a Member State’ within the meaning of Article 267 TFEU (then Art 177 EC) of the Treaty as the parties are not under an obligation, in law or in fact, to refer their disputes to arbitration. Furthermore the public authorities of the Member State concerned are not involved in the decision to opt for arbitration and are not required to intervene of their own accord in the proceedings before the arbitrator.
[44] By virtue of Article 15 of Regulation 1/2003.
[45] See for example Article 30.1 of the LCIA Arbitration Rules.
[46] On this point, see Article 9 of the Directive.
[47] New York Convention, Article V(1)(e) and the Model Law, Article 36(1)(a)(v).
[48] Footnote 2, supra.
[49] See Commission Staff Working Document: Practical Guide – Quantifying Harm in Actions for Damages (supra, footnote 3).
[50] Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, Official Journal (2013) C167/19.
[51] However, Article 4 of the Directive defines a ‘national court’ or ‘court’ to mean any court or tribunal of a Member State within the meaning of Article 267 of the Treaty and a ‘review court’ to mean a national court that is empowered to review decisions of a national competition authority, in which context it may also have the power to find an infringement of Article 101 or 102 of the Treaty.
[52] Article 4 of the Directive, paragraph 21.
[53] Paragraph 46 of the Directive.
[54] The Directive defines a ‘consensual settlement’ to mean an agreement reached through a consensual dispute resolution. It defines ‘consensual dispute resolution’ to mean any mechanism enabling the parties to reach an out-of-court resolution of a dispute concerning compensation for harm. According to the preamble to the Directive, this includes arbitration, mediation and conciliation.
[55] The joint and several liability of cartelists is a reflection of the common principles of tort law across the EU. It is now clearly provided for at Article 11 of the Private Damages Directive.
[56] Article 11(2) and 11(3) of the Directive.
[57] Case C-231/11 P Commission v Siemens Osterreich and others and and Cases C-232/11 P and C-232/11 P and C-233/P Siemens Transmission & Distribution and others v Commission, Judgment of the Court of 10 April 2014, paragraph 58. These judgments concerned the appeal of a Commission decision in Case COMP/F/38.899 (the Gas Insulated Switchgear cartel).
[58] See Joined Cases C-247/11 P and C-253/11 P Areva SA and Alstom Grid AG v Commission, Judgment of the Court of 10 April 2014, paragraphs 151 to 159. This judgement concerned an appeal of a Commission decision in Case COMP/F/38.899 (the Gas Insulated Switchgear cartel).
[59] The London Court of International Arbitration. See Article 8 of the LCIA Arbitration Rules which foresees the possibility of multiparty Arbitrations.
[60] See Articles 7 to 10 of the ICC’s Arbitration Rules (joinder of additional parties, claims between multiple parties, multiple contracts and consolidation of arbitrations).
[61] The Belgian Centre for Arbitration and Mediation. See Article 13 of CEPANI Arbitration Rules concerning consolidation of related Arbitrations.
[62] See Article 11 on Consolidation of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
[63] See footnote 7 above.
[64] Article 4(3), first sentence provides that: ‘[p]ursuant to the duty of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’.
[65] Adopted by Resolution of the IBA Council 29 May 2010
[66] Where i) the destroying party was or had been a party to the proceedings of a competition authority in relation to the conduct underlying the action for damages; or ii) the destroying party knew or should have known that an action for damages had been brought before the national court and that the evidence was of relevance in substantiating either the claim for damages or a defence against it; or iii) the destroying party knew that the evidence was of relevance to pending or prospective actions for damages brought by it or against it.
[67] See Redfern and Hunter on International Arbitration (supra footnote 33), p. 180: ‘The procedure of an arbitration may be and generally is regulated by the rules chosen by the parties; but the procedural law is that of the place of arbitration and, to the extent that it contains mandatory provisions, is binding on the parties whether they like it or not’.
[68] See Case C-126/97, Eco Swiss China Time Ltd v Benetton International NV, [1999] ECR I-3055.
[69] This is without prejudice to the rights and obligations of national courts under Article 30 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Official Journal (2012) L351/1.
[70] See footnotes 60 to 63, supra.
[71] Commission Staff Working Document: Practical Guide Quantifying Harm in Actions for Damages (supra, footnote 3), See also the Communication on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, Official Journal 2013/C 167/07.
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