Choice of forum and competition law: opt for the easy approach

It is often difficult to say what disputes do or don’t come under a contractual choice of forum or arbitration clause – particularly in the case of civil claims based on breach of competition law. Under Dutch law, breach of competition law constitutes a wrongful act. In the case of non-contractual claims, reliance on a contractual choice of forum or arbitration clause usually does not stand to reason. On the other hand, there is often a contractual relationship between parties in competition law disputes. Moreover, claims based on breach of competition law are in fact often related to an agreement, e.g. in cases in which a supplier was involved in a cartel and its customer wishes to reclaim the amount overpaid. It therefore comes as no surprise that courts are often requested to rule on the question whether a choice of forum or arbitration clause applies in such a case.

The Rotterdam Court, for instance, was recently requested to decide whether the designation of the Court of Nuremberg, Germany, in the choice of law clause governed a claim based on breach of competition law. The case involved the termination of a distribution relationship. A clothing company sued had agreed with a third party to open a clothing store in Rotterdam. It therefore no longer supplied clothing to the claimant, which also had a store in Rotterdam. That party then instituted proceedings before the Rotterdam Court, relying on the cartel prohibition. The defendant in its turn referred to a choice of forum in its general conditions. That choice of forum was broadly formulated: “If both parties are businessmen, then the place of jurisdiction […] is Nuremberg, Germany”.

This provision was so broadly formulated that it might also apply to claims based on competition law offences. To clarify the scope of the clause, the court also reviewed the other provisions of the general conditions. It found that the general conditions governed agreements between a party acting as the seller on the one hand, and a party acting as the buyer on the other hand. In the court’s opinion, that is a different type of contractual relation than a wrongful anticompetitive agreement. The court therefore ruled that the claims did not come under the choice of forum clause. The Rotterdam Court therefore found that it had jurisdiction to hear and decide on the dispute. You can read the judgement (in Dutch) here.

That outcome appears to be correct. And yet a different (and easier) approach could have led to the same ruling. This is apparent from a judgment passed by the Court of Justice of the European Union last year regarding the application of choice of forum clauses in “follow-on cases” (cases in which cartel damage claims are based on a decision of the European Commission).

In CDC HP the CoJ found that a choice of forum clause in a delivery agreement can be applied only if it is clear that it also relates to disputes in connection with liability incurred as a result of an infringement of competition law. The CoJ based that ruling on its earlier case law regarding the Brussels I Regulation. With reference to its judgment in Powell Duffryn, the ECJ found that a situation must be avoided in which a party is taken by surprise by the designation of a certain court to hear and decide on all disputes between the contracting parties. A party to a contract will generally not be aware that the other party is involved in a wrongful anticompetitive agreement.

So what does this mean in practice? If parties wish to ensure that a choice of forum or arbitration clause also applies to competition law claims, that must be expressly recorded. It is of course also possible to agree on a choice of forum or on arbitration after a dispute has arisen.

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