Conflict of Laws and Coordination
A globalised economy, the volume of world trade and the operations of multinational companies are only some of the aspects hinting at the transnational dimension of modern business transactions. Along with the internationalization of commerce, anti-competitive business practices increasingly tend to produce cross-border effects. Litigation involving competition law issues is becoming more and more international. Actions against anti-competitive practices, whether public or private, often involve companies located in different countries, business practices of global reach, enforcement in and judicial authorities from more than one State and evidentiary material spread across multiple jurisdictions.
The international element in antitrust litigations raises highly problematic issues, including:
- the determination of the law applicable to the assessment of the legality of an anti-competitive business practice affecting various geographies;
- the interaction between the law applicable to an anti-competitive practice and the law applicable to the validity of the contract underlying it;
- the determination of the competent authority or court to decide on disputes involving cross-border anti-competitive practices;
- the initiation of collective actions federating the interests of consumers established in different jurisdictions;
- the effects of the decision of a competition authority or a national court before the competent authority or courts of another country, the cooperation among administrative or judicial authorities confronted to the same or similar anti-competitive practice(s) and the taking of evidence abroad;
- the protection of the confidentiality of evidentiary materials and business secrets in cross-border antitrust disputes, etc.
These are but a few examples of the numerous problems to overcome in international antitrust litigations.
The central challenge common to all these issues can be summarized in one word: “coordination”.
In the European Union, coordination is partially addressed by EU instruments, such as Regulation 1/2003 on the implementation of the rules on competition and the regulations adopted in the field of civil justice (especially, Brussels I, Rome I and Rome II). However, these instruments raise complicated questions of interpretation and leave many issues unresolved.
The research project on “International Antitrust Litigation” aims to address these issues and offer coherent solutions.
More specifically, the objective of the project is twofold. On the one hand, the practical ambition is to formulate specific proposals for the interpretation of existing rules and for future legislative action. On the other hand, the theoretical ambition is to overcome the public-private divide in competition law enforcement and inquire as to whether and to what degree similar structures and principles can solve the coordination issues arising in both context.
Interim Seminar – 10-12 December 2009 – La Hulpe
Closing Conference – 26 March 2010 – Brussels
The research will be conducted by a team of 18 contributors with different professional backgrounds (academics, practitioners, officials of national competition authorities and of the EU Commission) and originating from various countries:
Prof. Jürgen Basedow
Jürgen Basedow is the director of the Max Planck Institute for Comparative and International Private Law in Hamburg and Professor at the University of Hamburg.
Rainer Becker works in the policy directorate of DG Competition, European Commission, focussing on the 'actions for damages' project and relations with national courts. He co-authored the damages White Paper and was involved in the negotiations on the Rome II Regulation. He previously worked in the ECN unit and in operational directorates on antitrust and merger matters in various industries. Before joining the Commission in 2004, he worked as a lawyer in Brussels and Cologne at a major international law firm (since 1999) representing clients on issues of competition law and in cross-border litigation matters. Rainer Becker's research interests include competition law, comparative law and private international law. He currently lectures at Heidelberg University and holds a Ph.D. (with Bernd von Hoffmann at Trier University) and an LL.M. degree (with John Brierley at McGill University, Montreal).
Prof. Hannah Buxbaum
Hannah Buxbaum is Executive Associate Dean for Academic Affairs and Professor of Law at the Indiana University Maurer School of Law, where she teaches in the areas of domestic and international business law and litigation. Her research focuses on jurisdictional conflict in international economic regulation.
Eddy De Smijter
Before joining the European Commission (DG COMP) in 2001, Eddy De Smijter has been teaching and doing research in European law at the universities of Leuven (Belgium) and Tilburg (the Netherlands). At DG COMP, he was involved in the negotiations on Regulation 1/2003 and on Rome II. Since 2005, he is a member of the 'actions for damages' team, co-authoring the Commission's Green and White Paper on antitrust damages actions. Throughout, he has been dealing with national competition authorities (ECN) and with national courts.
Prof. Marc Fallon
Marc Fallon is a full time Professor of Law at the Université catholique de Louvain where he teaches substantive European law and private international law. He is a member of the Groupe européen de droit international privé (GEDIP).
Prof. Stéphanie Francq
Stephanie Francq is a full time Professor of Law at the Université catholique de Louvain where she holds the Chair for European Law and teaches mainly substantive European law and private international law. The Chair for European Law aims at promoting the knowledge of substantive European law through seminars and conferences. Professor Francq’s research focuses on the management of legal diversity in Europe.
Damien Gerard is a Research Fellow attached to the Chair of European Law of the Université catholique de Louvain, currently on leave at Harvard Law School (Institute for Global Law & Policy). His recent research focuses on EC competition law enforcement, the interaction between EC competition law and internal market rules and the theory of European integration.
Prof. Laurence Idot
Laurence Idot is a full time Professor of Law at the Université Panthéon-Assas (Paris II), where she teaches Competition Law and European Business Law in the framework of the Collège européen de Paris. Laurence Idot is also a member of the French Competition Authority, the president of the French Section of the LIDC (Association Française d’Etude de la concurrence) and of the scientific committee of the review Concurrences, and the co-director of the monthly review Europe. Since her Ph.D. on international antitrust (1981), Professor Idot’s research focuses both on competition law and on its interaction with private international law and arbitration.
Prof. Catherine Kessedjian
Catherine Kessedjian is Director of a Master programme in European Law, Deputy Director of the European College of Paris and Professor of European Business Law, Private International Law, International Dispute Resolution and International Commercial Arbitration at the University of Panthéon-Assas, Paris II, France.
Dr. Assimakis Komninos
Assimakis Komninos is a Commissioner and Member of the Board at the Hellenic Competition Commission, a visiting lecturer at IREA - Université Paul Cézanne Aix - Marseille III, a visiting fellow of the Centre for Law and Governance in Europe at University College London (UCL) and an Executive Director of the Athens-based Institute for the Study of Competition Law and Policy (IMEDIPA). He has authored and co-edited many books, articles, case notes, and book reviews in the area of EC competition law.
Dominika Lawnicka is Attaché Temporaire d'Enseignement et de Recherche and a Ph.D. candidate at Université Toulouse 1 Capitole. Her main field of research are European competition law, European private international law and tort law. She teaches EC competition law, private international law, substantial European law and civil law.
Robert Moldén is a Senior Case Officer at the Swedish Competition Authority in Stockholm. He is also a doctoral candidate in competition and public procurement law at the University of Lund. Before joining the Swedish Competition Authority, he practised competition law at major international law firms in Brussels and Stockholm. He has also served at the European Commission’s DG Competition, Merger Task Force, and as an associate judge at the Administrative Court of Appeal in Gothenburg.
Prof. Ralf Michaels
Ralf Michaels is Professor of Law at Duke Law School and was, until 2009, Director of the Center of International and Comparative Law. In 2009/10 he is a Fellow and Visiting Professor at the Program for Law and Public Affairs at Princeton.
Prof. Sylvaine Poillot Peruzzetto
Sylvaine Poillot Peruzzetto is “Professeur Agrégé” of Law at the Université Toulouse 1 Capitole. She teaches European competition law and private international law. Her main fields of research are European private international law within the context of the area of liberty, security and justice, and European competition law.
Prof. Barry Rodger
Barry Rodger has been an academic at Strathclyde University Law School since 1993 and has been a Professor there since 2001. Professor Rodger has published widely in competition law and international private law. His co-authored textbook (with A MacCulloch) Competition Law and Policy in the EC and UK (Cavendish) is in its fourth edition and he has published numerous articles in journals such as the European Competition law Review, Columbia Journal of European Law, The Common Market Law Review, the Juridical Review, the Irish Journal of European law and World Competition. Many of his recent publications have focused on private enforcement of competition law including his comprehensive study of all competition-related litigation in the UK courts (ECLR 2006), the Kluwer Law International book Competition Law and Article 234: An Analysis (2008) which focuses on all competition law Article 234 preliminary rulings, and an empirical study of competition law litigation settlements in the UK between 2000-2005 (2008 ECLR). Professor Rodger is a member of the organizing committee of the Scottish Competition Law Forum and is the Vice-Chair of the Competition Law Scholars’ Forum and co-editor of the Competition Law Review.
Dimitrios-Panagiotis Tzakas is Research Fellow at the Chair for European law of the Université Catholique de Louvain and Advocate (Dikigoros) authorized to appear before the Athens and Piraeus Courts of Appeal. His Ph.D. Thesis (submitted at the University of Hamburg, pending) deals with the jurisdictional and conflicts-of-laws aspects of the civil antitrust liability (“Die Haftung für Kartellrechtsverstöße im internationalen Rechtsverkehr”).
Prof. Blanca Vilá Costa
Blanca Vilá is Ph.D. in Law, Universitat Autonòma de Barcelona (1977, “Abuse of Dominant Position in the EEC Law”, Madrid, INAP 1979), Professor of Private International Law at UAB since 1987, Jean Monnet Chair in European Law at the UAB, Faculty of Law /IUEE since 1990, visiting professor at the Collège of Europe, Brugge (1990-2000) and Natolin (1997-2007), 25 h, Internal Market Law. Visiting professor in Toulouse, Aix-en Provence, Rennes, Strasbourg III, Paris2 –IHEI, Panteios(Athens) UM Tessaloniki, U. Perugia, among others. She has been ELFA’s President (2005-2006), and Member of the Academic Board (2003-2005). She is now Director of the University Institute of European Studies at UAB.
Michael Wilderspin is a Member of the Legal Service of the European Commission and the author of a number of publications in the field of private international law.
Prof. Wolfgang Wurmnest
Wolfgang Wurmnest is a Professor of Law at the Gottfried Wilhelm Leibniz University of Hanover where he holds the Chair for German and European Private Law, Economic Law, Comparative and Private International Law. See his publications.
The project was funded by:
• the Civil Justice program of the European Commission;
• the Chair of European Law of the Université catholique de Louvain (UCL);
• the Max Planck Institute for Comparative and International Private Law.