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E-raamat: International Antitrust Litigation: Conflict of Laws and Coordination [Hart e-raamatud]

Edited by Laurence Idot, Edited by Jurgen Basedow, Edited by Stephanie Francq

Formaat: 520 pages
Sari: Studies in Private International Law
Ilmumisaeg: 03-Feb-2012
Kirjastus: Hart Publishing
ISBN-13: 9781847318879

Teised raamatud teemal:

Hart e-raamatud
Hind: 149,98 €*
* hind, mis tagab piiramatu üheaegsete kasutajate arvuga ligipääsu piiramatuks ajaks

Formaat: 520 pages
Sari: Studies in Private International Law
Ilmumisaeg: 03-Feb-2012
Kirjastus: Hart Publishing
ISBN-13: 9781847318879

Teised raamatud teemal:

Rohkem infot Hart e-raamatute kohta

The decentralization of competition law enforcement and the stimulation of private damages actions in the European Union go hand in hand with the increasingly international character of antitrust proceedings. As a consequence, there is an ever-growing need for clear and workable rules to coordinate cross-border actions, whether they are of a judicial or administrative nature: rules on jurisdiction, applicable law and recognition, as well as rules on sharing of evidence, the protection of business secrets, and the interplay between administrative and judicial procedures. This book offers in-depth analysis of these long neglected, yet important, topics. It is the fruit of a research project funded by the European Commission, which brought together experts in academia, practice, and policy-making from across Europe and the United States. The 16 chapters cover the relevant provisions of the Brussels I and Rome I and Rome II Regulations, the co-operation mechanisms provided for by Regulation 1/2003, and selected issues of US procedural law (such as discovery) that are highly relevant for transatlantic damages actions. Each contribution critically analyzes the existing legislative framework and formulates specific proposals that would consolidate and enhance cross-border antitrust litigation in Europe and beyond. (Series: Studies in Private International Law - Vol. 8)

Series Editors' Preface

Table of Abbreviations

xxi

Table of Cases

xxv

Table of Legislation

xlv

Table of Treaties, Conventions and Agreements etc

lix

1 Introduction

(14)

Jurgen Basedow

Stephanie Franco

Laurence Idot

I Context

(1)

II Why Analyse Antitrust Disputes in the Light of Private International Law?

(7)

A The International Aspect of Antitrust Litigation

(1)

B The Characteristics of Antitrust Litigation

(1)

C Examples and Issues

(1)

i Example A

(1)

ii Example B

(1)

iii Example C

(1)

iv Example D

(3)

D The Normative Context

(1)

III Aims of the Research Project

(1)

IV Content and Structure of the Book

(1)

V Working Method

(5)

A Who is Who?

(1)

B Working Method

(1)

C Methodological Premises

(3)

PART I INTERNATIONAL ANTITRUST LITIGATION - CONFLICT-OF-LAWS ISSUES

(242)

1.1 Jurisdiction In Eu Cross-Border Litigation

(2)

2 How to apply Articles 5(1) and 5(3) of the Brussels I Regulation to Private Enforcement of Competition Law: a Coherent Approach

(14)

Blanca Vila Costa

I Introduction

(2)

II Introductory Proposal: There Is No Need to Amend the Brussels I Regulation with a View to Facilitating Private Enforcement of Competition Law

(4)

III Interpretative Proposals Concerning Article 5(1)

(3)

IV Interpretative Proposals Concerning Article 5(3)

(5)

3 International Cartels and the Place of Acting under Article 5(3) of the Brussels I Regulation

(10)

Jurgen Basedow

I Introduction

(1)

II Article 5(3) Regulation 44/2001

(1)

III Multistate Effects and Limited Jurisdictional Competence

(1)

IV Perspectives on the Place of Acting and Jurisdictional Competence

(2)

A Place of Agreement or Concerted Action

(1)

B Place of Implementation

(1)

C Seat of the Defendant as Place of Acting

(1)

V Variety of Cartel Forms

(4)

A (Quasi-)Incorporated Cartels

(1)

B Cartel Agreements Made outside of (Quasi-)Corporate Structures

(1)

C Single-Instance Cartel Agreements

(1)

D Complex Cartel Agreements

(1)

E Stable Place of Implementation

(1)

VI Summary: A Multiplicity of Places of Acting

(2)

4 Jurisdiction Issues: Brussels I Regulation Articles 6(1), 23, 27 and 28 in Antitrust Litigation

(22)

Michael Wilderspin

I Introduction

(2)

A Purpose of this Paper

(1)

B The Relevant Provisions of the Brussels I Regulation

(1)

i Article 6(1) Brussels I Regulation

(1)

ii Article 23 Brussels I Regulation

(1)

iii The Provisions on Lis Pendens and Related Actions

(1)

II The Provimi Litigation

(3)

A Factual Background

(1)

B Applications to Strike Out the Actions

(1)

C Other Issues Which Are Either Implicit in the Judgment or Were Common Ground between the Parties

(1)

III Analysis of the Judgment of the High Court in Provimi in the Light of the European Court's Case-Law

(5)

A Article 6(1)

(4)

B Article 23

(1)

IV Recommendations to Be Made with Regard to Article 6(1) and Articles 23, 27 and 28 Brussels I Regulation

(12)

A Article 6(1)

(2)

B Article 23

(3)

C Article 27

(2)

D Article 28

(3)

1.2 Applicable Law In The Eu - Rome I and Rome II

(2)

5 Private Enforcement of Antitrust Provisions and the Rome I Regulation

(28)

Marc Fallon

Stephanie Francq

I Introduction

(1)

II How Do Antitrust Rules Apply in Contractual Litigation?

(18)

A Basic Principles Governing the Designation of the Lex Contractus

(1)

i The Rules Governing the Identification of the Applicable Law

(2)

ii Exceptions

(1)

B Basic Principles Governing the Applicability of Competition Law

(1)

i Influence of Competition Law on the Substance and Validity of Contracts

(1)

a General Remarks: the Influence of Competition Law is Incidental in regard to the Contractual Regime

(1)

b Influence of EU Competition Law on Contractual Litigation

(1)

c Influence of Article 101(3) TFEU and Block Exemption Regulations

(3)

ii The Nature of Competition Law from the Point of View of Private International Law

(1)

C The Intervention of Competition Law Rules in International Contractual Litigation

(1)

i EU Competition Law

(1)

a Primary Law

(2)

b Secondary Law

(1)

ii National Competition Law

(1)

a The Interplay of Article 4 and Article 9 Rome I

(2)

b Conflict of Competition Laws of Different Legal Systems

(2)

D Conclusion

(1)

III Specific Issue: The Nullity of the Contract or Part Thereof and its Consequences

(9)

A Nullity of the Contract or Part Thereof

(1)

i Material Scope of the Provision on Nullity

(3)

ii The Law Applicable to Issues Related to the Nullity of the Contractual Agreement but Falling Outside the Scope of Article 101(2) TFEU

(2)

B Assessment of Damages and Nemo Auditur

(1)

i Taking into Account Substantive Overriding EU Requirements

(1)

ii Ascertaining the Applicable Law

(1)

C Conclusion

(1)

6 International Antitrust Claims under the Rome II Regulation

(40)

Stephanie Francq

Wolfgang Wurmnest

I Introduction

(2)

II Legislative History

(3)

III Foundations of Article 6 Rome II

(11)

A Determining the Scope of the Rome II Regulation

(1)

i General Remarks

(1)

ii Non-Contractual Obligations

(1)

iii Civil and Commercial Matters

(1)

B Article 6 Rome II in the General System of the Regulation

(1)

i Overview

(2)

ii Is Article 6(3) Rome II a Universal Provision?

100

(3)

C The Interplay between Articles 6(1) and 6(3) Rome II

103

(1)

i Background

103

(1)

ii No Need to Distinguish Articles 6(1) and (3) Rome II?

104

(1)

iii The Dividing Line between Unfair Competition and Restriction of Competition

105

(2)

D Necessary Legislative Amendments

107

(1)

IV Nature of the Rules Designated by Article 6(3) Rome II

107

(12)

A Problem Stated

107

(1)

i Various Aspects of Competition Law

107

(2)

ii Market Rules Determine their Own Scope of Application

109

(1)

B Solution for Articles 101, 102 TFEU

110

(1)

C Possible Solutions for Market Rules of National Origin

111

(1)

i Article 6(3) Rome II as an `Open Gate'

111

(3)

ii Market Rules as Overriding Mandatory Rules (Article 16 Rome II)

114

(3)

iii Market Rules as Rules of Safety and Conduct (Article 17 Rome II)

117

(2)

D Necessary Legislative Amendments

119

(1)

V The Law of the Affected Market, Article 6(3)(a) Rome II

119

(5)

A Defining the Relevant Market

120

(2)

B Nature of the Link Required

122

(2)

C Necessary Legislative Amendments

124

(1)

VI The Right to Choose the Law of the Forum, Article 6(3)(b) Rome II

124

(4)

A General Remarks

124

(1)

B Unwritten Limitations of the Concentration Rule?

125

(1)

i Problem Stated

125

(1)

ii Limitations with Regard to the Application of National Competition Law

126

(1)

iii Limitations with Regard to the Kind of Damage Sustained by the Plaintiff

127

(1)

C Necessary Legislative Amendments

128

(1)

VII Conclusion

128

(3)

7 Relevance of the Distinction between the Contractual and Non-Contractual Spheres (Jurisdiction and Applicable Law)

131

(30)

Sylvaine Poillot-Peruzzetto

Dominika Lawnicka

I Introduction

131

(4)

II Preliminary Question: Is the Debate Related to the Distinction between Contractual and Non-Contractual Spheres an Odd Issue in the Context of Actions for Damages Based on a Breach of EU Competition Law?

135

(3)

III Assessment of the Distinction between Contractual and Non-Contractual Claims Arising out of a Restriction of Competition

138

(7)

A Distinction of the Texts

139

(1)

B Distinctions as Far as the Reasoning and the Solutions are Concerned

139

(1)

i The Distinctions and the Issue of Determining Jurisdiction

139

(1)

a Tort

140

(1)

b Contract

140

(1)

ii The Distinction and the Issue of Applicable Law

140

(1)

a Differences Based on the Assessment of a Specific Policy

141

(1)

b Differences Based on the Specification of the Policy

141

(1)

c Differences between Solutions on the Basis of Examples

141

(3)

d Results of the Comparison

144

(1)

IV How the Distinction Conflicts with European Principles

145

(10)

A The European Principles Involved

145

(1)

i Specificity of the European Legal Order and Its Directions

145

(1)

ii Competition Policy as a Pillar of the Internal Market

146

(1)

a The Importance of the Basis

146

(1)

b The Effects of the Basis in Competition Law: the Specificity of Private Actions Based on Competition in the Member States

147

(1)

iii The Area of Freedom, Security and Justice

147

(1)

a Predictability, Legal Certainty and Justice

147

(1)

b Fundamental Place of the European Citizen

148

(1)

c Simplification of Litigation

148

(1)

d No Distortion of Competition between Litigants

148

(1)

e Consistency among the European Texts

148

(1)

B The Elements of the Conflict

149

(1)

i The Difficult Implementation of the Distinction between Contractual and Non-Contractual Obligations Conflicts with Certainty, Predictability, Necessity of Simplification and Effectiveness of Competition Policy

149

(1)

a Conflicts Resulting from the Existence of the Primary Distinction between Contractual and Non-Contractual Obligations

149

(2)

b Conflicts Resulting from the Difficulties of Implementation of the Distinction within the Categories

151

(2)

ii The Variety of the Solutions Induced by the Existence of the Distinction Conflicts with Principles of the Area of Freedom, Security and Justice as well as with the Objective of Effectiveness of EU Competition Law

153

(1)

a Different Choice of Jurisdiction for the Plaintiff Conflicts with the Principle of Non-Distortion of Competition between the Litigants when they Sue for Damages on the Basis of a Breach of Competition Rules

153

(1)

b Possible Party Autonomy in Case of Contractual Obligations Conflicts with Competition Policy and with the Principles of the Area of Freedom, Security and Justice

153

(1)

c Different Connecting Factors and Different Reasonings whether the Obligation Is Contractual or Non-Contractual for the Same Prohibited Behaviour Conflicts with the Principle of Consistency and with the Necessity not to Distort Competition between the Litigants

154

(1)

d Possible Use of Article 4(4) Rome I Regulation for a Contractual Obligation Conflicts with the Necessary Predictability of the Solutions for the Plaintiff

154

(1)

e The Impossibility of Adoption of a Single Applicable Law to an Action Brought against Several Defendants (Namely Distributors) on the Basis of Several and Similar Contractual Obligations May Be Considered in Conflict with at Least Three European Principles

154

(1)

iii The Lack of Specific Rules for Contract Conflicts with the Objective of Effectiveness of European Competition Policy and the Principle of Consistency

154

(1)

V Proposals of Means of Convergence

155

(2)

A Formal Solution

155

(1)

i The Solution of Formal Unity of Competition Matters Through a Single Text

155

(1)

ii The Solution of Formal Diversity through Three Texts Containing Equivalent Provisions

156

(1)

B Substantive Common Solutions

156

(1)

VI Conclusion

157

(4)

1.3 Alternative Forms Of Litigation

159

(2)

8 International Litigation and Competition Law: the Case of Collective Redress

161

(30)

Dimitrios-Panagiotis L Tzakas

I Introduction

161

(1)

II The Requirements Emanating from EU Competition Law

162

(3)

III Current State of Collective Redress in the EU

165

(5)

A Collective Redress in the Legal Systems of the Member States

165

(1)

i Representative Actions

165

(2)

ii Collective Actions

167

(1)

B The Propositions of the European Commission

168

(2)

IV Specific Issues Raised by Collective Redress Instruments

170

(13)

A Representative Actions

170

(1)

i Recognition of the Representative Entity

170

(2)

ii Admissibility of the Type of Action

172

(1)

iii Defining the Eligible Representative Entities

172

(1)

a Conflict-of-Laws Issues

172

(3)

b Questions of Interchangeability or Substitution

175

(1)

c The Commission's Proposals

176

(2)

iv Represented Individuals

178

(2)

v Distribution of Damages

180

(2)

B Collective Actions

182

(1)

V Jurisdictional Aspects

183

(1)

VI Applicable Law

184

(1)

VII Recognition and Enforcement of Collective Redress Rulings

185

(4)

VIII Conclusion

189

(2)

9 Arbitration and EU Competition Law

191

(34)

Assimakis P Komninos

I Introduction

191

(1)

II Modernised EU Competition Law and Arbitration

192

(6)

A From Distrust to Embrace

192

(2)

B How Competition Law Issues Arise in Arbitration

194

(1)

C Arbitrability of EU Competition Law

194

(2)

D Competences of Arbitrators in the Decentralised System of Enforcement

196

(2)

III The Application of EU Competition Law by International Arbitration Tribunals

198

(4)

A EU Competition Law as Applicable Law in Trans-border Disputes in General

198

(2)

B The Specific Case of Arbitration

200

(2)

IV The Institutional Position of Arbitration in its Relationship with the European Commission

202

(5)

A Arbitration Is Not Covered by the Cooperation Duties of Regulation 1/2003

202

(2)

B General Exclusion of Arbitration from the Courts Cooperation Notice

204

(2)

C A Notice on Cooperation with Arbitrators?

206

(1)

V Conflicts of Resolution between Arbitration and Competition Authorities

207

(6)

A Arbitration and Article 16 Regulation 1/2003

207

(3)

B Arbitration and National Laws Conferring a Binding Effect on NCAs' Decisions

210

(1)

C Direct Intervention by the Commission as an Exceptional Corrective Mechanism

211

(2)

VI The Ultimate Safeguard: the Public Policy Control of Arbitral Awards

213

(12)

A Eco Swiss

213

(1)

B The Extent of the Public Policy Control

214

(4)

C A Proposed Balanced Approach for Review of Arbitral Awards

218

(3)

D Conclusion

221

(2)

1.4 Beyond the EU

223

(2)

10 Jurisdiction and Choice of Law in International Antitrust Law-A US Perspective

225

(20)

Hannah L Buxbaum

Ralf Michaels

I Introduction

225

(3)

A The Value of a US Perspective

225

(2)

B Doctrinal Matters

227

(1)

II Personal Jurisdiction

228

(3)

A Personal Jurisdiction

228

(1)

i Targeting

228

(1)

ii Conspiracy

229

(1)

B Forum non Conveniens

230

(1)

III Applicable Law

231

(9)

A Actions for Monetary Damages

231

(1)

i Damages Claims as Part of Applicable Antitrust Law

231

(1)

ii Effects Doctrine

232

(1)

iii Concentration of Applicable Law

233

(2)

iv Application of Foreign Law

235

(2)

B Contract Validity

237

(1)

i Party Autonomy

238

(1)

ii Federal Antitrust Law and State Contract Law

238

(1)

iii US Antitrust Law and Foreign Contract Law

239

(1)

iv Foreign Antitrust Law and State Contract Law

239

(1)

IV Conflict-of-Laws Issues in Class Action Certification

240

(4)

A Jurisdiction Over Non-Resident Class Members

240

(1)

B Applicable Law

241

(2)

C Recognition of Foreign Judgments: The Question of Preclusion

243

(1)

V Conclusion

244

(1)

11 Recognition and Enforcement of Foreign Judgments

245

(12)

Catherine Kessedjian

I Introduction

245

(1)

II Which Model to Choose?

246

(5)

A The United States

246

(3)

B The European Union

249

(2)

III Specific Issues in Competition Law

251

(5)

A Punitive Damages

252

(2)

B Administrative Penalties in Addition to Civil Damages

254

(1)

C Judgment Handed Down After a Collective Action

255

(1)

IV Conclusion

256

(1)

PART II INTERNATIONAL ANTITRUST LITIGATION - COORDINATION ISSUES

257

(146)

11.1 Coordination Between Competition Authorities And Courts

257

(2)

12 Access to Evidence and Files of Competition Authorities

259

(30)

Laurence Idot

I Introduction

259

(4)

II Access to Evidence in the Context of the European Union

263

(16)

A Acknowledgement of a Right of Access

263

(1)

i Disclosure Inter Partes

263

(1)

a Situation in Positive Law (De Lege Lata)

263

(5)

b The Proposed Solutions (De Lege Ferenda)

268

(2)

ii Access to the Competition Authorities' Files

270

(1)

a Situation in Positive Law (De Lege Lata)

270

(2)

b Proposed Solutions (De Lege Ferenda)

272

(1)

B The Limits to the Right of Access

273

(1)

i Identification of the Limits Accepted in Competition Laws

273

(1)

a The Rights and Privileges Granted to Undertakings Involved in Administrative Proceedings

273

(2)

b The Restrictions on the Authorities' Right to Disclose

275

(1)

ii The Introduction of the International Dimension

276

(1)

a The Pre-Draft Solutions

277

(1)

b The Suggested Improvements

278

(1)

III Access to Evidence in a Truly International Context

279

(10)

A The Current Situation

280

(1)

i Access for a Claimant in a Private Action to Evidence Located Abroad

280

(1)

a The Limits of International Cooperation

281

(1)

b The Development of Unilateral Application

282

(1)

ii The Use in Foreign Proceedings of Documents Located in the United States

283

(1)

B The Possible Means

284

(1)

i Experience Gained from International Cooperation in Competition Matters

284

(2)

ii The Lessons to Be Learned from International Cooperation in Matters of Mutual Legal Assistance

286

(3)

13 Exchange of Information and Opinions between European Competition Authorities and Courts - From a Swedish Perspective

289

(26)

Robert Molden

I Introduction

289

(4)

A Introduction to the EU - Framework of Regulation 1/2003

289

(2)

B Introduction to Swedish Competition Law Procedure - The New Swedish Competition Act of 2008

291

(2)

II The Right of National Courts to Request a Preliminary Ruling from the Court of Justice in Competition Law Cases

293

(3)

A General Observations on Preliminary Rulings by the Court of Justice

293

(1)

B Swedish Courts' Requests for a Preliminary Ruling from the European Court of Justice in Competition Law Cases

294

(1)

i The STIM Case

294

(1)

ii The TeliaSonera ADSL Case

295

(1)

III The Right of NCAs and the Commission to Submit Amicus Curiae Observations to National Courts in Competition Law Cases

296

(5)

A General Points on Amicus Curiae Observations in Competition Law Cases

296

(1)

i The Garage Gremeau Case

297

(1)

ii The Case on Tax Deductibility of Commission Fines in the Netherlands

298

(1)

iii The Pierre Fabre Dermo-Cosmetique Case

299

(1)

B Amicus Curiae Observations Issued by the SCA to Swedish Courts in Competition Law Cases

300

(1)

i The Soda-Club Case

300

(1)

IV The Right of National Courts to Request Opinions from the Commission in Competition Law Cases

301

(5)

A General Points on Requests of Opinions from the Commission by National Courts in Competition Law Cases

301

(1)

B Requests for Opinions from the Commission by Swedish Courts in Competition Law Cases

302

(1)

i The Ystad Harbour Case

302

(1)

ii The Ekfors Case

303

(1)

C The Right of Swedish Courts to Request Opinions from the Swedish Competition Authority in Competition Law Cases

304

(1)

i The SAS v Luftfartsverket Case

305

(1)

V The Right of National Courts to Request Information from the Commission in Competition Law Cases

306

(1)

VI The Obligation of Member States to Forward National Judgments on EU Competition Law to the European Commission

307

(3)

A General Points

307

(1)

B The Swedish Example: Non-Transparent Provisions

308

(1)

C The German Example: Transparent Provisions

309

(1)

VII Why National Courts Are Not Entitled by Regulation 1/2003 to Request Information and Opinions from NCAs - Proposal to Consider Amending Regulation 1/2003 in this Respect

310

(5)

A A Puzzling Asymmetry between Articles 15(1) and 15(3)

310

(1)

B An Overview of the Legislative History of the Coordination Measures Embodied in Article 15 Regulation 1/2003

311

(1)

i The Obligation to Forward Copies of National Judgments on EU Competition Law to the Commission - Article 15(2)

311

(1)

ii The Right of NCAs and the Commission to Submit Amicus Curiae Observations to National Courts - Article 15(3)

312

(1)

iii The Right of National Courts to Request Information and Opinions from the Commission - Article 15(1)

312

(1)

C Analysis of the Legislative Process

313

(2)

14 Discovery in a Global Economy

315

(30)

Maurice E Stucke

I Introduction

315

(1)

II Litigants Abroad Who Seek Discovery in the US

315

(11)

A When Does the US Court Have Statutory Authority to Order Discovery Under Section 1782(a)?

316

(1)

i Who Can Seek Discovery Under Section 1782?

317

(1)

ii What Foreign Proceedings Qualify Under Section 1782(a)?

318

(1)

iii When Can an Interested Person Seek Discovery under Section 1782?

319

(1)

iv What Kind of Discovery Is Available under Section 1782(a)?

320

(1)

B When Will the US Courts Exercise Their Discretion and Permit Discovery under Section 1782?

321

(1)

i Is the Person from Whom Discovery Is Sought a Participant in the Foreign Proceeding?

322

(1)

ii Comity Considerations

323

(1)

iii Is the Applicant's Discovery Request under Section 1782(a) an Attempt to Circumvent Foreign Proof-Gathering Restrictions or Other Policies of a Foreign Country or the United States?

324

(1)

iv Is the Discovery Request Unduly Intrusive or Burdensome?

325

(1)

III When Can Private Litigants in the US Seek Discovery Abroad?

326

(10)

A Does the US Court Have the Statutory Authority to Order the Requested Discovery?

326

(1)

i Federal Rules of Civil Procedure Versus the Hague Convention

327

(1)

ii Personal Jurisdiction

328

(1)

iii US Court's Subpoena Power

329

(1)

iv Seeking Discovery from Multi-National Corporations Operating Through Subsidiaries in Various Countries

329

(2)

B Should the US Court Exercise Its Discretionary Authority to Compel Production?

331

(1)

i EC's Leniency Program

331

(2)

ii Blocking Statutes

333

(3)

IV Friction from US Discovery

336

(6)

A Criticisms about the United States' Liberal Discovery Mechanisms for Foreign Litigants

338

(3)

B Policy Proposals

341

(1)

V Conclusion

342

(3)

11.2 Coordination Within The European Competition Network

343

(2)

15 The ECN and Coordination of Public Enforcement of EU Law - Can Lessons Be Learned from International Private Law Jurisdiction Rules and Vice Versa?

345

(20)

Barry J Rodger

I Introduction

345

(1)

II Regulation 1/2003 and the Functioning of the ECN

346

(2)

A The nature of the ECN

346

(1)

B ECN Functioning

346

(2)

III ECN `Case Allocation'

348

(6)

A The Network Notice

348

(2)

B 2009 Commission Report on Regulation 1/2003

350

(1)

C Procedures, Sanctions and Inconsistent Outcomes: Divergence and Convergence

351

(3)

IV Leniency and Concurrency

354

(2)

V International Private Law and Conflicts of Jurisdiction

356

(4)

A Introduction

356

(1)

B Lis Alibi Pendens- First Come First Served

357

(1)

C Forum Non Conveniens

358

(2)

VI Concluding Remarks

360

(5)

A Lessons from the US?

360

(1)

B The Private and Public Enforcement Context Compared

360

(1)

C Case Allocation Methods Compared

361

(1)

D Mutual Lessons?

362

(1)

E Future Issues in Case Allocation

363

(2)

16 Regulation 1/2003 (and Beyond): Balancing Effective Enforcement and Due Process in Cross-Border Antitrust Investigations

365

(28)

Damien MB Gerard

I Introduction

365

(1)

II Issues and Approaches

366

(21)

A Coordination Issues: Dealing with Diversity and Uncertainty

367

(1)

i Diversity

368

(2)

ii Uncertainty

370

(3)

B Approaches: Managing Diversity to Ensure Legal Certainty

373

(1)

i Conflictualist Approach

373

(3)

ii Cumulative Approach

376

(1)

a The Position of Individuals in Cross-Border Investigations

376

(3)

b The Kerosene Case

379

(1)

c The European Courts and Evidence Obtained from Third Countries

380

(1)

iii Recognition Approach

381

(1)

a Recital 16 in the Broader Context of Enforcement Cooperation

382

(4)

b Recital 16 in the Broader Context of the European Integration Process

386

(1)

III Solution and Recommendations

387

(4)

A Solution: Successive Application of the Lex Fori Mitigated by the Convergence between National Procedural Enforcement Frameworks

387

(1)

i Control of Legality

388

(1)

ii Control of Admissibility

389

(1)

B Recommendations: Enhance Legal Certainty to Ensure a Proper Balance between Effective Enforcement and Due Process

390

(1)

IV Concluding Remarks

391

(2)

17 Recognition of Foreign Decisions within the European Competition Network

393

(10)

Jurgen Basedow

I Introduction: Integration Policy and Recognition

393

(2)

II The Recognition of an NCA Decision by the NCA of another Member State

395

(1)

III The Recognition of an NCA Decision in Civil Proceedings of another Member State

396

(2)

IV The Recognition of Civil Judgments by a Civil Court of a Foreign Member State

398

(1)

V The Recognition of Civil Judgments by an NCA of a Foreign Member State

399

(1)

VI The Effect of Recognition

400

(2)

VII Conclusion

402

(1)

Policy Proposals

403

(38)

How to apply Articles 5(1) and 5(3) of the Brussels I Regulation to Private Enforcement of Competition Law: a Coherent Approach

405

(2)

Blanca Vila Costa

International Cartels and the Place of Acting under Article 5(3) of the Brussels I Regulation

407

(2)

Jurgen Basedow

Jurisdiction Issues: Brussels I Regulation Articles 6(1), 23, 27 and 28 in Antitrust Litigation

409

(4)

Michael Wilderspin

Rome I and Antitrust Litigation

413

(2)

Marc Fallon

Stephanie Francq

Rome II and Antitrust Litigation

415

(4)

Stephanie Francq

Wolfgang Wurmnest

Relevance of the Distinction between the Contractual and Non-Contractual Spheres (Jurisdiction and Applicable Law)

419

(6)

Sylvaine Poillot-Peruzzetto

Dominika Lawnicka

International Litigation and Competition Law: the Case of Collective Redress

421

(4)

Dimitrios-Panagiotis L Tzakas

Arbitration and EU Competition Law

425

(2)

Assimakis P Komninos

Recognition and Enforcement of Foreign Judgments

427

(2)

Catherine Kessedjian

Access to Evidence and Files of Competition Authorities

429

(4)

Laurence Idot

Exchange of Information and Opinions between European Competition Authorities and Courts - From a Swedish Perspective

433

(2)

Robert Molden

The ECN and Coordination of Public Enforcement of EU Law---Can Lessons Be Learned from International Private Law Jurisdiction Rules and Vice-Versa?

435

(2)

Barry J Rodger

Regulation 1/2003 (and Beyond): Balancing Effective Enforcement and Due Process in Cross-Border Antitrust Investigations

437

(2)

Damien MB Gerard

Recognition of Foreign Decisions within the European Competition Network

439

(2)

Jurgen Basedow

Index

441

Jürgen Basedow is Director, Max Planck Institute for Comparative and International Private Law, Hamburg, Professor at the University of Hamburg and former chairman of the German Monopolies Commission. Stéphanie Francq is Professor and Chair of European Law at the Catholic University of Louvain. Laurence Idot is Professor at the University Paris II Panthéon-Assas and member of the Board of the French Competition Authority.

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E-raamat: International Antitrust Litigation: Conflict of Laws and Coordination [Hart e-raamatud]

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