Arbitration and EU Antitrust Follow-on Damages Actions

Abstract

This article addresses the subject of whether, when and how EU antitrust follow-on damages actions, which seek civil remedies for harm alleged to have been suffered from the infringement of European antitrust law rules, may be submitted to international arbitration. The article begins by tracing the development of follow-on damages litigation in Europe, and then addresses the anticipated growth of such actions as a result of the EU Damages Directive. Next, the article considers certain procedural obstacles that may be encountered when parties seek to arbitrate follow-on claims. The relevant challenges relate to case law in certain European jurisdictions that has interpreted agreements to arbitrate narrowly in relation to followon claims, and to the complex nature of follow-on actions. Despite such challenges, the article argues that there are reasons why corporate users may prefer to avail themselves of international arbitration in relation to follow-on disputes. The article therefore explores mechanisms for maximizing arbitral options in the follow-on setting, including through drafting techniques, ex post submissions and undertakings before regulators.