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Private Antitrust Litigation in 24 Jurisdictions Worldwide 2014 Consulting Editor: Samantha Mobley

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Private Antitrust Litigation in 24 Jurisdictions Worldwide 2014 Consulting Editor: Samantha Mobley ® GCR GLOBAL COMPETITION REVIEW Private Antitrust Litigation in 24 jurisdictions worldwide 2014 Consulting editor: Samantha Mobley Published by Getting the Deal Through in association with: Actecon Danıs¸manlık AS¸ Anderson Mori & Tomotsune Aninat Schwencke & Cia Ashurst Australia Avah Legal Baker & McKenzie LLP Barretto Ferreira e Brancher (BKBG) Berger & Montague, PC Cleary Gottlieb Steen & Hamilton LLP Clifford Chance LLP Dhir & Dhir Associates DLA Piper Spain SL Dorda Brugger Jordis ENS (Edward Nathan Sonnenbergs) Jun He Law Offices Mannheimer Swartling McDermott, Will & Emery McMillan LLP Meyerlustenberger Lachenal Avocats – Attorneys at Law Milbank Tweed Hadley & McCloy LLP Motieka & Audzevicˇius Osborne Clarke Rajah & Tann LLP Skadden, Arps, Slate, Meagher & Flom LLP Skrine Smeets van Empel advocaten Vasil Kisil & Partners CONTENTS ® Private Antitrust Plaintiff Overview Merrill G Davidoff, Michael Dell’Angelo and Zachary D Caplan Litigation 2014 Berger & Montague, PC 3 Consulting editor Samantha Mobley Australia Ross Zaurrini and Elizabeth Sarofim Ashurst Australia 6 Baker & McKenzie LLP Publisher Austria Stephan Polster Dorda Brugger Jordis 12 Gideon Roberton Brazil Paulo Brancher and Luiz Eduardo Salles Barretto Ferreira e Brancher (BKBG) 17 Business development managers Alan Lee George Ingledew Canada David Kent, Éric Vallières and Lisa Parliament McMillan LLP 24 Dan White Account manager Chile Luis Alberto Aninat, Javier Velozo, Ximena Rojas and Cristián Banfi Zosia Demkowicz Megan Friedman Aninat Schwencke & Cia 30 Trainee account managers Cady Atkinson China George (Zhao) Wang, Christine Kang, Stanley Wan and Mark H Chu Joseph Rush Dominique Destrée Emma Chowdhury Jun He Law Offices 34 Media coordinator England & Wales Elizabeth Morony and John Alderton Clifford Chance LLP 40 Parween Bains Administrative coordinator EU Overview Thomas Funke Osborne Clarke 57 Sophie Hickey Trainee research coordinator France Jacques Buhart and Lionel Lesur McDermott, Will & Emery 60 Robin Synnot Marketing manager (subscriptions) Germany Alexander Rinne Milbank Tweed Hadley & McCloy LLP 68 Rachel Nurse [email protected] India Rahul Goel and Anu Monga Dhir & Dhir Associates 74 Head of editorial production Adam Myers Italy Mario Siragusa, Marco D’Ostuni and Cesare Rizza Cleary Gottlieb Steen & Hamilton LLP 79 Production coordinator Lydia Gerges Japan Hideto Ishida Anderson Mori & Tomotsune 88 Senior production editor Jonathan Cowie Lithuania Mantas Gudžiu¯nas, Ramu¯nas Audzevicˇius and Beata Kozubovska Subeditor Anna Andreoli Motieka & Audzevicˇius 93 Director Callum Campbell Malaysia Lim Koon Huan and Jason Teoh Choon Hui Skrine 99 Managing director Richard Davey Mexico Ronald Prat Avah Legal 104 Netherlands Mark Smeets, Martijn van Empel and Loes Brekhof Private Antitrust Litigation 2014 Published by Smeets van Empel advocaten 108 Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Singapore Kala Anandarajah Rajah & Tann LLP 114 Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 © Law Business Research Ltd 2013 South Africa Mark Garden, Rutendo Hlatshwayo and Schalk van Rensburg No photocopying: copyright licences do not apply. ENS (Edward Nathan Sonnenbergs) 118 First published 2003 11th edition Spain Juan Jiménez-Laiglesia, Alfonso Ois, Rául Partido and Samuel Rivero DLA Piper Spain SL 127 ISSN 1742-2280 Sweden Tommy Pettersson, Stefan Perván Lindeborg and Henrik Andersson The information provided in this publication is general and may not apply Mannheimer Swartling 134 in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. Switzerland Christophe Rapin, Martin Ammann and Pranvera Këllezi This information is not intended to create, nor does receipt of it constitute, a Meyerlustenberger Lachenal Avocats – Attorneys at Law 139 lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Turkey M Fevzi Toksoy and S¸ahin Ardıyok Actecon Danıs¸manlık AS¸ 144 Although the information provided is accurate as of September 2013, be advised that this is a developing area. Ukraine Oleksiy Filatov and Andriy Stelmashchuk Vasil Kisil & Partners 150 Printed and distributed by United States Gary A MacDonald, James Keyte, Tiffany Rider and Anjali B Patel Encompass Print Solutions Tel: 0844 2480 112 Skadden, Arps, Slate, Meagher & Flom LLP 154 Law Business Research ENGLAND & WALES Clifford Chance LLP England & Wales Elizabeth Morony and John Alderton Clifford Chance LLP Legislation and jurisdiction in the event of an unsuccessful claim but an ‘uplift’ of up to 100 per cent on their basic fees if they win, have encouraged 1 How would you summarise the development of private antitrust claimants to issue proceedings here on a relatively low-risk basis litigation? in terms of costs. Changes to the basic rules for conditional fee England and Wales has proved to be a popular jurisdiction in which arrangements in April 2013 mean that the ‘uplift’, or success fee, to bring private antitrust claims. In addition to ‘stand-alone’ and is no longer recoverable in costs from the losing party in most ‘follow-on’ actions (the former requiring the claimant to prove cases (including antitrust cases). Instead, the success fee must be the infringement; the latter relying on an infringement decision of paid from the damages awarded. the UK or EU competition regulators), competition law issues are regularly invoked in the context of other commercial disputes. In June 2013, the UK government published a draft Consumer A number of features of the English legal system are attractive to Rights Bill which seeks to, among other things, ‘make it easier for claimants considering where to issue private antitrust proceedings: consumers and businesses to gain access to redress where there • Disclosure. The disclosure rules in English litigation are has been an infringement of antitrust provisions’. Clause 82 of the extensive compared to those of most other EU member states. draft bill will bring into force Schedule 7, which amends both the In High Court proceedings, the parties are required to search for Competition Act 1998 (CA98) and the EA02 and which, according and disclose not only documents on which they themselves rely, to the Explanatory Notes to the Bill, has three main aims: to widen but also documents that could harm their case and that could the types of competition cases that the CAT hears and to make other assist the other party’s case. In cartel cases, for example, such changes to the procedure of bringing a private action before the disclosure is of particular importance in circumstances where the CAT; to provide for opt-out collective actions and opt-out collective majority of relevant documentation is likely to be unavailable settlements; and to provide for voluntary redress schemes. to all parties to the litigation. Changes made to the disclosure While much of the detail of the proposals will be contained in rules for large cases in April 2013 require parties to complete the CAT Rules, the Bill proposes: a Disclosure Questionnaire describing the potentially relevant documents they may have, prior to disclosure being given. This New powers for the CAT will provide greater transparency about what documents exist, The UK government is proposing to extend the jurisdiction of the where they are located and the likely cost of retrieving them. CAT so that it can hear stand-alone claims. While the provisions for disclosure in the Competition Appeal The CAT will have the power to grant injunctions, and a fast- Tribunal (CAT) are more general, typically defendants would track procedure will be introduced for simpler competition claims in similarly need to disclose evidence that is potentially helpful to the CAT. The Explanatory Notes to the Bill state that the purpose of the claimant. the fast track procedure is to enable simpler cases brought by SMEs • Specialist courts. The CAT is a specialist competition court to be resolved more quickly and at a lower cost. which, since the Enterprise Act 2002 (EA02) came into force The limitation periods for the CAT are to be harmonised with in June 2003, has had jurisdiction to hear follow-on damages those of the High Court of England and Wales, the High Court of claims. The purpose was to create a specialist forum in which Northern Ireland and the Court of Session in Scotland, as appro- such claims could be brought, with procedural rules more flexible priate. This means that a six year limitation period will apply to than the Civil Procedure Rules (CPR) applicable in High Court all private action cases in the CAT brought in England and Wales proceedings. That said, follow-on claims (as well as stand-alone and Northern Ireland, whether stand-alone or follow-on, while in actions) can be brought in the High Court. The Competition Scotland the limitation period will remain five years, in line with the Law Practice Direction provides for competition litigation in the Scottish Court of Session. High Court to be heard in two specific divisions (Chancery and the Commercial Court), with judges in those courts receiving A new right of collective action competition law training. The UK government has decided to introduce a limited opt-out col- • Costs. While the nature of proceedings in England and lective actions regime, with safeguards, for competition law. The Wales can make litigating there more expensive than in other regime would apply to both follow-on and standalone cases, with jurisdictions, the general rule in High Court proceedings is that cases to be heard only in the CAT. the losing party must pay the successful party’s costs. (In the The new plans have several safeguards. The CAT will be CAT, there is no such general rule and costs awards are made required to certify whether a collective action brought under the new as the Tribunal sees fit.) Fee arrangements involving payment regime should proceed on an opt-in or opt-out basis. The underly- of a percentage of recoveries are not permitted in relation to ing claimants in such a case can be either consumers or businesses, contentious work, but ‘conditional fee arrangements’ in which or a combination of the two.
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