Archivos Mensuales: junio 2015

Forum shopping in Damage claims, Yes Please!! (The CDC Saga, again)

Here we have a new Judgement that clears more the ideas behind the Damage claims in the EU after a Cartel.

CDC by chance of by effort are the ones ahead being the spearhead in this types of claims, and clarifying what and what could not be done in these type of cases.

In this case, C-352/13 the Court has clarified the application of Brussels one, to these procedures in the EU. We all know the context of this suits, the Hydrogen Peroxide cartel. And the claimant, CDC.

The local court of Dortmund, has elevated a question to the Court of Justice, asking, first, if in a Single Continuous Infringement (SCI) cartel case of many participants, an applicant can sue in only one jurisdiction to avoid contradicting awards; secondly, asking if a causal link is needed between the harm and the place it had occurred to be able to sue in a local court; and, finally, if the forum shopping can be avoided by application of a clause in the main contract derogating jurisdiction.

In the first one, it is applicable Article 6(1) of the Regulation, and the procedural exception contained in it. The applicant had chosen Germany as its preferred forum, since Evonik, a participant of the cartel is domiciled there. The problem was, that the defendants have alleged that CDC and Evonik had reached an illegal agreement to get to an out-of-court settlement before the sue, to manipulate articles 6 exception. The final answer is that forum shopping is legal, if the settlement is real, and not agreed beforehand (which has to be proven). This of course, to avoid irreconcilable judgments in several jurisdictions.

In the second question arises the applicability of Article 5(3) of the Regulation, in relation to the Torts doctrine, or the extra-contractual responsibility principal (quasi-delict in some places), this is just the application of the known principle that one can sue in the place where has suffered the damage.As stated in paragraph 40 of the judgement. And precedent case-law.

Finally, and interestingly, in application of the extra-contractual responsibility principle, the third questions says that a defendant cannot use a derogation of jurisdiction clause to avoid being sued in another jurisdiction than its jurisdiction. The Courts says, that although it is true that this clauses have to be complied with, they are only valid when talking about problems that arise from the contract and the relationships created by it, not from a quasi-delict conduct outside the contract.

This is interesting, because, companies can add to jurisdiction derogation clauses in agreements a phrase stating that, the derogation is also applied in cases of responsibilities arising from competition law, although it would be technically correct, the other party in the contract might be suspicious about it, but I am sure that contract lawyers would find a way to insert such provisions.

By: J. Nicolás Otegui Nieto