Legal Obstacles to Private Enforcement of Competition Law

Michal S Gal,Rivi Dahan

doi:10.7559/mclawreview.2019.1835

Abstract

Private enforcement of competition law serves many important goals, including deterrence of future anti-competitive harms and correction of past harms. This article sheds light on several potential legal obstacles to such enforcement which could prevent it from achieving its goals. The examples mainly build upon the experience of different jurisdictions with private litigation. It also suggests some possible solutions for dealing with or limiting such obstacles. As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important.

Highlights

Private Enforcement – An Important Step Forward Private enforcement of competition law serves many important goals
As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important
Private enforcement is on the road to soon become an important new pathway for competition law enforcement

Summary

Introduction

Private Enforcement – An Important Step Forward Private enforcement of competition law serves many important goals. They can be direct, for example by mandating the parties to waive their rights to challenge certain conduct.[14] They can be indirect, for example by imposing a mandatory contractual requirement that any claims be settled through a personal arbitration process, that actions only be brought in a pre-specified court or country, that class actions be not allowed, or that the contract be automatically terminated once a private action is brought While some of these limitations may have pro-competitive justifications, they may significantly affect the incentives and the ability of those harmed by anti-competitive conduct to bring private actions. Contractual terms that practically prevent the ability of private plaintiffs to pursue a competition law claim should be prohibited Such terms close an important door for incentivising strong market players not to engage in violations involving small individual damages but causing large aggregate harm, leaving those harmed to rely on public enforcement. International Competition Network, Advocacy and Competition Policy – Report prepared by the Advocacy Working Group, i-iii, 2002

Excessive Pricing Litigation

Findings

Conclusion