International Antitrust Litigation

A globalised economy, the volume of world trade and the operations of multinational companies are only some of the aspects hinting at the transnational dimension of modern business transactions. Along with the internationalization of commerce, anti-competitive business practices increasingly tend to produce cross-border effects. Litigation involving competition law issues is becoming more and more international. Actions against anti-competitive practices, whether public or private, often involve companies located in different countries, business practices of global reach, enforcement in and judicial authorities from more than one State and evidentiary material spread across multiple jurisdictions.

The international element in antitrust litigations raises highly problematic issues, including:

• determination of the law applicable to the assessment of the legality of an anti-competitive business practice affecting various geographies;
• interaction between the law applicable to an anti-competitive practice and the law applicable to the validity of the contract underlying it;
• determination of the competent authority or court to decide on disputes involving cross-border anti-competitive practices;
• initiation of collective actions federating the interests of consumers established in different jurisdictions;
• effects of the decision of a competition authority or a national court before the competent authority or courts of another country, the cooperation among administrative or judicial authorities confronted to the same or similar anti-competitive practice(s) and the taking of evidence abroad;  
• protection of the confidentiality of evidentiary materials and business secrets in cross-border antitrust disputes, etc.

These are but a few examples of the numerous problems to overcome in international antitrust litigations.
The central challenge common to all these issues can be summarized in one word: “coordination”.
In the European Union, coordination is partially addressed by EU instruments, such as Regulation 1/2003 on the implementation of the rules on competition and the regulations adopted in the field of civil justice (especially Brussels I, Rome I and Rome II). However, these instruments raise complicated questions of interpretation and leave many issues unresolved.

The research project on “International Antitrust Litigation” aims to address these issues and offer coherent solutions. More specifically, the objective of the project is twofold. On the one hand, the practical ambition is to formulate specific proposals for the interpretation of existing rules and for future legislative action. On the other hand, the theoretical ambition is to overcome the public-private divide in competition law enforcement and inquire as to whether and to what degree similar structures and principles can solve the coordination issues arising in both context.

About the content and theoretical background

Content

The “International Antitrust Litigation” project focuses on the coordination of antitrust enforcement, with a special emphasis on international private disputes.
One central theme of the Project is the coordination of jurisdictions and of applicable laws in the context of international private enforcement disputes, thus focusing on the interpretation of Regulation 44/2001 (Brussels I), Regulation 593/2008 (Rome I) and Regulation 864/2007 (Rome II). Their application to litigations of antitrust disputes needs to be clarified. Starting from the distinction between contractual and non-contractual cases, on which they are based, many questions of interpretation need to be addressed.
Private enforcement actions are very often triggered by public enforcement initiatives. The relation between the two types of procedure constitutes therefore the second focus of the research project. Relevant and topical issues include the exchange of information (including access to file) between courts and competition authorities and the authority of their respective decisions, in particular in foreign fora.
At EU level, the coordination of enforcement among national competition authorities and with the Commission raises very similar issues to those mentioned above, including the determination of the competent authority, the exchange of information and the effects of foreign administrative or juridical decisions.  Regulation 1/2003 and the associated communications issued by the EU Commission provide for a broad set of rules to facilitate coordination between the national and the Community’s competition authorities. However, numerous questions remain unanswered today. In that regard, the project will inquire whether principles relied on in the context of private litigations can inform and assist in refining the existing framework. Conversely, it will assess the extent to which the coordination mechanisms set up by Regulation 1/2003 could be adapted to the context of private actions.
Competition based litigation may also end up before arbitration panels. In that context, questions of exchange of information and coordination of proceedings are even more unsettled and in need of clarifications.  
Finally, even though the procedural and substantive contexts differ, the American experience may suggest solutions for the coordination issues arising in Europe. The US practice will be dwelled upon regarding issues of jurisdiction, applicable law, enforcement of judgments and collective actions.

Theoretical Background

The objective of this research projects is to federate two disciplines that have traditionally ignored one another in Europe: competition law and private international law.
The theoretical underpinnings of competition law and private international law have evolved in isolation from each other and both fields of law are, in the practice, implemented by different actors (competition authorities on the one hand, judges on the other hand; as a result, few practitioners are active in the two fields).  This gap is frequently explained with the public nature of the one and the private nature of the other. However, both disciplines do interact and will increasingly so in the future.
Increased private enforcement of competition law, as promoted by the Commission in the Green and White Papers on “Damages actions for breach of EC antitrust rules” (COM (2005) 672 final; COM (2008) 165 final), will inevitably cause lawyers and  judges to confront problems of conflicts of jurisdiction and conflicts of laws. Where cases present cross-border elements, courts will rely on the usual tools proposed by private international law, i.e., conflict of jurisdiction and conflict of laws rules. However, these tools might need some adaptation in view of the specific nature of competition law. For instance, the interpretation of the conflict of laws rules relevant to private actions involving competition issues (be they contractual or extra-contractual) will have to strike the right balance between the unilateralist technique (generally used by provisions of competition law to define their own scope) and the bilateralist technique (generally considered as appropriate for litigations based on private law).
Conversely, the decentralization of the public enforcement of EC competition law increases the risk of conflicts of authorities, whether at national or European level. Those conflicts need to be managed to ensure legal certainty and due process for private parties. Yet, some of those issues are similar in nature to those encountered in private disputes and solved by traditional tools of private international law (e.g., concurring jurisdictions, the taking of evidence abroad, etc.).  Hence, could the techniques of private international law prove efficient in the public enforcement context?
The research project postulates that, indeed, private international law theory, especially the domain of conflict of authorities, has a significant potential for contributing to the management of conflicts arising in the public enforcement context.
In summary, the research project “International Antitrust Litigation” postulates that a better acquaintance with the techniques of private international law could improve the effectiveness of the public enforcement of competition law while solutions designed in the framework of public competition law enforcement carry the potential of influencing the interpretation of the private international law rules relevant to private antitrust disputes.