The German Federal Court of Justice (“BGH”) set off a heated debate when it vacated an arbitral award based on the false application of certain sections of the German Competition Act (GWB) on September 27, 2022 (BGH KZB 75/21), conducting a full review of the arbitral award on the merits. German practitioners were concerned that…
On 10 October 2023, Corrs Chambers Westgarth hosted a panel discussion on the topic of “The next new variant? Arbitration in the healthcare and life sciences sector” as part of Australian Arbitration Week. The panel was moderated by Cara North of Corrs Chambers Westgarth and comprised: The Honourable Dr Annabelle Bennett AC SC, retired judge…
Whenever courts annul an arbitral award on the grounds of substantive public policy, there is typically an outcry. Especially amongst arbitrators. And even more when the court analyzes the merits of the award and holds that the arbitral panel incorrectly applied the law. This is exactly what the German Federal Court of Justice (Bundesgerichsthof, the…
Despite traditionally being considered unsuitable for arbitration, recent practice evidence that the concrete lines separating antitrust disputes and arbitration have blurred. Ever since the US Supreme Court approved arbitrability of antitrust disputes in Mitsubishi Motors v Soler (“Mitsubishi Motors”) (discussed here and here), similar understanding has been accepted in EU (Eco Swiss v Benetton), England…
The intersection of competition law and arbitration has been around for thirty-five (35) years. Competition disputes are likely to be seen more frequently in arbitration today, given its flexibility, speed and cost savings potential. Notably, the recent and extraordinary US government antitrust suit in the Novelis merger highlighted just that point, as the parties agreed…
During the last decade, antitrust arbitration has experienced some turbulent times. While many national courts decided against the arbitrability of competition disputes, a handful of them allowed for such proceedings to take place before an arbitral tribunal. Recently, the U.S. Department of Justice has relied on arbitration to resolve an antitrust dispute in the United…
Private antitrust actions were long thought to be non-arbitrable due to the public law character of antitrust law, though the scope of non-arbitrability has been reduced to varying extents in different jurisdictions. For instance, US courts had long adhered to the so-called “American Safety doctrine”, which limited the arbitrability of domestic antirust disputes.1)American Safety Equipment v…
It is a pleasure to return as General Editor of the Kluwer Arbitration blog after two years serving as Deputy Assistant Attorney General for the Antitrust Division of the Department of Justice (the “DOJ”). For those interested in learning about my experience at the DOJ, a brief summary is available here. My congratulations and thanks…
The last session of the London International Disputes Week discussed the resolution of competition disputes. Sir Peter Roth, The Honorable Mr Justice, President of the UK Competition Appeal Tribunal, gave the keynote speech. Sir Roth explained that, while most of these disputes are a follow up to EU Commission decisions and one must also take…
This note will first reflect back thirty three years on the genesis of arbitration and competition matters and the Mitsubishi case, and then, in Part 2 below, I will touch on some practical issues that frequently will arise in a competition case today and how Mitsubishi is still influencing with vigor. As the reader will…
Now that we know the “second look” is not so much a look but a glance, what does this mean for arbitrators in these cases, frequently highly complex disputes infused with economics? In brief, it places a very heavy burden to get it right. The mandatory public policy of competition law which would by contract…
My previous blog post on this topic dealt with two issues stemming from the juxtaposition between the current arbitration legal framework and necessary due process requirements which are specifically developed for antitrust damages proceedings: (1) the necessary regulation of complex arbitration specifically designed for antitrust damages matters, and (2) the need to address information asymmetry…
The Member States of the European Union (“EU”) had a task that a very few has managed to complete: to implement the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 (“Damages Directive” or “Directive”) by 27 December 2017. According to the website of the EU Commission, only ten Member…
On the 7th of July 2016 the Court of Justice of the European Union (“Court” or “CJEU”) published the judgment in the Genentech case (Case C 567/14), awaited with great interest both by IP and competition practitioners, on one side, and by arbitration practitioners, on the other. IP and competition law practitioners’ interest lies in the…
A ruling of the Austrian Supreme Court, the Oberste Gerichtshof in Vienna, Austria, of earlier this year (see ruling of 18 February 2015, 2 Ob 22/14w) raises anew the much debated question of the type and intensity of supervisory court review of European Union (EU) competition law awards. Readers may recall that EU competition law…
This is the second part of a post related to arbitration and antitrust follow-on damages claims in Europe. Part 1, which addressed problems of jurisdiction ratione materiae that arise in relation to follow-on damages claims, is accessible here. Part 2 of this commentary addresses additional challenges and opportunities that warrant attention when the possibility of…
This post, which will be presented in two parts, proposes to pick-up on a subject addressed in an earlier commentary posted by R. Bellinghausen and J. Grothaus regarding the CJEU’s decision in CDC v. Akzo Nobel et al [See Judgment C-352/13]. As highlighted in the earlier post, the CJEU’s recent decision raises a number of questions…
On 21 May 2015, the CJEU rendered a landmark decision regarding questions of jurisdiction under the Brussels I Regulation (recast as Regulation 1215/2012, previously Regulation 44/2001) in the case of cartel damage proceedings. We may be grappling with this decision for a long time albeit it does not explicitly address arbitration. The CJEU’s judgment brings…
and David Mamane and Hannah Boehm, Schellenberg Wittmer With its interim judgment of 15 January 2015, the Higher Regional Court of Munich added a new chapter to the longstanding legal dispute between the German speed skater Claudia Pechstein and the International Skating Union (“ISU”) (see the previous report on this story). The full decision has…
For many years, the standard of review by French courts of awards rendered in international arbitration proceedings on grounds of violation of international public policy has been controversial. Scholars have debated the relative merits of a “minimalist” as opposed to a “maximalist” approach. In court decisions, the “minimalist” approach prevailed. In the area of competition…
A number of decisions of various national courts have dealt with the issue whether a competition law dispute may be referred to arbitration. Although the case law tends to favour a positive answer, it is still an issue that is being continuously brought up in litigation as an easy way out of arbitration clauses. This…
The vexed question of the arbitrability vel non of competition law has now reached the shores of the United Arab Emirates. Readers will, of course, be aware that this question has been answered in the affirmative – and most will agree rightly so – in the world’s leading arbitration jurisdictions, in particular in Europe and…
A commentary on the OECD Competition Commission conclusions on using arbitration to effectively resolve competition law disputes By Francesca Richmond and Sarah West There has been increasing use of arbitration to resolve disputes involving competition law issues in recent years. However, it is surprising that the number is not even greater given that arbitral processes…
