Lawyers seem to be divided in their opinion on the implications for arbitration of a recent ruling by the Court of Justice on jurisdiction in cartel damages claims. The Court took an expansive view of the jurisdiction of a national court to hear cartel damages claims and the judgment is considered in a previous post of mine (Court of Justice ruling on jurisdiction in cartel damages case clarifies claimants’ options). The issue for this post is the impact of that judgment on jurisdiction clauses and specifically arbitration.
The first point to make is that the judgment considers jurisdiction clauses in general terms. The Court held that the national court will be bound by a jurisdiction clause in cartel cases if the cartel victim consented to the clause with full knowledge of the cartel and the harm caused. As I posted previously, it seems that in cartel cases a jurisdiction clause could be upheld only in rare circumstances. The cartel victim would have needed to have known about the cartel before consenting to the provision. Echoing this view the Court said that the national court would need to consider whether the parties “did in fact, derogate” jurisdiction and in the specific case of cartel damages.
I hope that national courts will take a narrow and sensible approach to the judgment as far as choice of jurisdiction and arbitration are concerned. It is not surprising that the Court sought to rein in the scope for a prior agreement to limit the options for a cartel victim to pursue a damages claim. However, that should not displace the up to now well understood interpretation of arbitration clauses. The judgment is rather oblique on this point but it does not contain anything specific about limiting the scope of arbitration and in other contexts where there is a valid agreement to that effect.
Case C 352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel and others (ECLI:EU:C:2015:335)
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