Private International Law and Competition Litigation in a Global Context
Dr Mihail Danov, Associate Professor at the University of Exeter, has accepted the invitation of the editors of the blog to present his recent book, titled ‘Private International Law and Competition Litigation in a Global Context’, published in the Hart Publishing series on Studies in Private International Law.
The book examines the private international law issues in competition law claims which are issued by private parties and which arise out of infringements that distort the process of competition in different countries. The issues are important because many private antitrust damages claims would raise regulatory issues concerning the nature of the conduct as well as tortious issues concerning the causation and quantification of damages that may be sustained by numerous consumers and businesses (that may be up or down the chain of commerce).
The private international law aspects matter in practice because the jurisdiction rules (predetermining the applicable procedural rules) and the choice-of-law rules (ascertaining applicable law/s which are used to determine whether the conduct is anticompetitive as well as to quantify damages) would both have an impact on the outcome of a cross-border competition law dispute. More importantly, the book demonstrates that private international law issues are closely intertwined with injured parties’ access to legal remedies in private antitrust damages claims. For example, since many competition law infringements may last for several years and cause harm to various injured parties, the procedural rules (concerning case-management; disclosure; standard of proof) at the place where the parties litigate would be key for judges to quantify damages by applying the applicable substantive law rules. This means that the injured parties’ access to justice might often depend on where the proceedings are issued.
A major layer of complexity, which signifies the importance of private international law, is that competition law infringements may frequently be committed by multinational groups of companies that would naturally engage in transnational economic activities. Since the relevant anticompetitive conduct would potentially cause antitrust damages to many consumers and businesses in different jurisdictions, multiple and related private antitrust damages claims (and public enforcement actions) may be issued against different subsidiaries forming part of the same infringing undertaking/s (i.e. group/s of companies). A regime for judicial cooperation is needed because competition laws would reflect the national public policy (being classified as overriding mandatory rules for the private international law purposes). In order to determine whether the conduct is anticompetitive, judges may apply extra-territorially their own competition laws (without necessarily factoring in foreign regulatory interests). This means that an important question is how any related competition law claims – which arise out of the same competition law infringement/s and which raise common issues (concerning the nature of the conduct or causation or damages) – are to be governed in a global context. A closely connected policy choice concerns any preclusive effects of foreign judgments / decision, establishing competition law infringements and/or dealing with certain common issues.
The existing private international law rules are considered along with their implications for the resolution of cross-border competition law disputes before the English courts with a view to suggesting how a regime for judicial cooperation should / could be developed. The issues – which need to be considered by injured parties, defendants, judges and which should be addressed by policy-makers with a view to promoting a level of judicial cooperation in antitrust matters – are identified. The book goes further to advance an argument for a new approach to governance by suggesting that private international law techniques may be key to attaining a level of judicial cooperation in a global context.
