1. Summary of English case law
The most recent English case to consider the application of choice-of-forum clauses in commercial contracts to cartel damage claims was Microsoft Mobile OY (Ltd) v Sony Europe Limited [2017] EWHC 374 (Ch). This case centred on a cartel damages claim brought by Microsoft against Sony with regard to contracts for the sale of lithium-ion batteries. The supply contract contained an arbitration clause and, importantly for this decision, the agreement also provided for any change in price under the contract to be negotiated in good faith. The High Court found that the joint arbitration and jurisdiction clauses applied to the tortious competition claim. The Court reasoned that any price fixing behaviour would breach the good faith obligation and thus give rise to a contractual claim. As the contractual claim would clearly fall within the scope of the arbitration and jurisdiction clauses, the court found that it was reasonable to suppose that the parties would have wanted and intended for claims in tort to be arbitrated in the same way. The fact that a contractual claim had not been pursued was not pertinent, only that one existed. The central tenant of this decision is the existence of an overlap between the contractual claim and the tortious claim. In turn, this lent substantial evidential weight to the foreseeability of the damage discussed at length in C-352/13 – CDC Hydrogen Peroxide SA v Akzo Nobel NV (2015).
2. Comment
The English courts have not yet had an opportunity to revisit this issue following C-595/17 –Apple Sales International v MJA (2018). However, this will be a far from simple task. While the CJEU was clearly trying to make a distinction between the type of anticompetitive behaviour at hand, the clarity of this delineation leaves much to be desired and a number of unanswered questions. First, does it follow from the judgment that Article 101 offences are entirely excluded from the reach of jurisdiction clauses, or that they simply will not be caught by more generally worded clauses? Second, as not all behaviour caught by Article 101 can be said to be beyond the reasonable contemplation of the parties at the time of contracting, are courts to consider extensively the factual evidence of the behaviour at the time of contracting? Finally, the Apple judgment is seemingly predicated on the belief that, by contracting with an undertaking in a dominant position, the possibility of abuse “cannot be regarded as surprising one of the parties“. This inevitably (and unfairly some may argue) places a substantial commercial risk on the smaller contracting party. In conclusion, the current lack of clarity surrounding this issue reiterates the need for drafters of jurisdiction clauses to consider carefully not only the possibility of infringements of competition law, but also the form such infringements might take.
