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This article discusses the Competition and Markets Authority’s (CMA) proposals to lower the standard of review of certain antitrust decisions in the Competition Appeal Tribunal (CAT) from a merits appeal to judicial review principles or some other limited basis, while retaining the CAT’s ‘full jurisdiction’ over fines, and to amend the CAT’s rules of procedure to restrict the admissibility of new evidence on appeal and the use of oral testimony. The argument developed in this article is that such proposals are: (i) in conflict with the constitutional principle of the rule of law; (ii) incompatible with the Human Rights Act 1998 (HRA98); (iii) a step back even from the often criticized standard of review applied by the Union Courts in respect of European Commission’s decisions; (iv) inappropriate as a matter of policy. If the current regime needs improving to reduce the cost and length of the proceedings, then three options should be considered: (i) moving from a merits appeal to a merits review (Option 1); (ii) strengthening the independence of the decision-making panel within the CMA (Option 2), while lowering the standard of review to judicial review principles; (iii) establishing a prosecutorial model (Option 3). Option 3 is the most radical but should be given serious consideration as it is likely to be the best suited to achieving the policy objective of reducing the cost and length of competition proceedings while at the same time retaining rigorous scrutiny of the facts and economic evidence, which is key to ensuring not only the fairness, and therefore the legitimacy, of the system, but also its effectiveness.

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. The Amsterdam Court of Appeal in Kemira Chemicals Oy v CDC Project 13 SA held that they do not. In Microsoft Mobile Oy (Ltd) v Sony Europe Ltd, Peter Smith J held that they do, provided that the claimant can plead an arguable contractual claim with which the tortious claim would be closely connected. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims or to disapply them and that the approach in Microsoft Mobile is not only correct under EU law but more in line with general principles of conflict of laws and international arbitration law. Indeed, the approach in Microsoft Mobile may still be quite restrictive because there is a reasonable argument that, whenever a price charged under a contract is unlawful because of a cartel between the seller and third parties, a cartel damages claim in tort arises in connection with the contract and should therefore fall under a sufficiently widely drafted arbitration clause. Finally, it cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a very high one. However, given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature and involving third parties who may not be bound by the same arbitration clause or by any arbitration clause at all, it is difficult to conceive of circumstances in which this threshold may be met.

This article examines three, intertwined questions arising from the recent case law on global FRAND licences under threat of injunction. First, whether the obligation of an implementer to enter into a global licence of all the standard-essential patent (SEP) owner’s relevant SEPs on pain of a national injunction is consistent with the policies underpinning a SEP owner’s obligation to grant a FRAND licence. Secondly, whether the conduct of a SEP owner insisting on an implementer entering into a global licence under threat of an injunction is compatible with the UK Chapter II prohibition and Article 102 TFEU. Thirdly, whether the assumption and exercise by national courts of the power to settle the terms of global licences is a rational way of resolving global FRAND licensing disputes. On all three counts, the conclusion is that departing from territorial jurisdiction in the matter of FRAND licences is not advisable as it has the effect of distorting the incentives of SEP owners and implementers in such a way that FRAND licences and FRAND negotiations are less likely to reflect, or be driven by, the value of the underlying technology. As a result, global FRAND licences may apply excessive royalties or royalties for SEPs that are invalid, not essential, or not infringed. A system of national enforcement is better suited to striking a right balance between the interests of SEP owners and implementers, producing better outcomes in terms of effects on social welfare and productivity.

Chapter 4 deals with exclusionary abuses under the Competition Act 1998, covering both public and private enforcement cases. The analysis concerns the approach to dominance as well as tests for abuse, focusing on retroactive rebates and bundled discounts, exclusion in multi-market settings, exclusivity, most favoured nation and equivalent clauses, discrimination, and exclusionary abuses in the pharmaceutical sector. This chapter argues that, in its second decade, modern UK competition law continued a trend that was already clear in the first decade: the prohibition of abuse of dominance is applied in a more economically robust and commercially reasonable way than it is by the EU institutions - the Commission and the EU courts - and in certain other Member States. The chapter notes that the third decade of the Competition Act 1998 will see the UK develop its competition policy free from the constraints of EU law and may allow for some divergence in the approach to exclusionary abuses in the future.

In this issue, the Journal of Antitrust Enforcement introduces a new section discussing recent developments in competition law enforcement. This first commentary session explores the significance of the UK Competition Appeal Tribunal (CAT) holding in Ping Europe Ltd v Competition and Markets Authority. This ruling is the first word of the CAT on the admission of new evidence in appeal proceedings based on rule 21(2) of the CAT Rules 2015. Renato Nazzini and Despoina Mantzari explore the ruling and its policy and practical implications, each from a different perspective offering both a positive and negative account. Nazzini’s comment explores the asymmetric rule set by the ruling in a two-tier administrative system concluding that ‘the approach of the CAT in Ping is, essentially, correct’, while Mantzari’s observations focus on the balance between the rights of defence and effective competition law enforcement arriving at the conclusion that ‘it is not for the CAT to usurp the role of the CMA as the primary fact-finder’. It is still rather early stages to evaluate the impact of the judgment, but the debate will continue and is likely to be fierce.

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims. The outcome of each case will depend on the law applicable to the arbitration agreement and the precise words in the agreement itself and it is not a matter governed by EU law. It cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a high one. It would not be sufficient for the claimant to persuade the court that it would have been more advantageous for him to make its claim in court or that the claimant was not aware of the cartel at the time of entering into the arbitration agreement. The claimant must prove that to arbitrate the claim would make the exercise of rights conferred by EU law impossible or excessively difficult. Given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature, it is difficult to conceive of circumstances in which this threshold may be met.

This paper addresses the problem of the regulation of digital advertising from a comparative and global perspective. There are a number of possible concerns about digital advertising, ranging from the lack of transparency of transactions and “unfair” conduct to conflicts of interest and self-preferencing by certain operators, from the way personal data are gathered and used to excessive concentration and market power in the supply chain. Several reports have been produced, including in the United Kingdom, in Australia, in Japan, and in a number of EU Member States. This paper examines the potential concerns that have been identified, focusing on the Interim Report by the Headquarters for Digital Market Competition of the Japanese Cabinet Office. It concludes that an international approach should be adopted, with the right mix of Government intervention, under the aegis of institutions such as UNCTAD, UNCITRAL or the OECD, and Government-backed industry self-regulation. This is the only way to avoid regulatory unilateralism, which would fragment markets, hinder trade and ultimately harm business and consumers world-wide, depriving them of the benefits that the digital economy has already brought about and has the potential to deliver in the future.

In this article, the author examines the standard of foreclosure that the European Commission applied in Google Shopping (Search) and Google Android and concludes that the standard of foreclosure is mere capability to foreclose. The only exception is the revenue-sharing abuse in Google Android, where the Commission adopted a standard of capability to foreclose as efficient competitors. These tests are subjected to scrutiny in light of the case law of the Union Courts on Article 102 TFEU from a doctrinal and policy perspective. The author argues that, under EU law, two standards of foreclosure may apply: capability of foreclose and likelihood of foreclosure of as efficient competitors causing negative effects on price, output, quality, or innovation. The capability standard should apply to ‘naked’ abuses, that is, conduct that clearly falls outside competition on the merits because it has the sole purpose of restricting competition and no plausible efficiency rationale, such as predatory prices when prices are below average variable costs or average incremental costs or certain abuses consisting in making false representations to public authorities. The standard of foreclosure of as efficient competitors causing negative effects on price, output, quality, or innovation should apply to all types of conduct that could be anti-competitive but also consistent with competition on the merits, such as tying, conditional rebates or payments, and self-preferencing. Both the Intel and Post Danmark I cases strongly support this conclusion when they establish that the purpose of Article 102 TFEU is not to protect competitors that are not as valued by consumers in terms of price, output, quality, and innovation as the dominant undertaking.

This article examines the problem of the law governing the validity of the arbitration agreement. The cases ofSulaméricain the English Court of Appeal and ofFirstLinkin the High Court of Singapore demonstrate that leading arbitration jurisdictions around the world can come to diametrically opposite results. In particular, there are currently diverging views as to whether the law applicable to the arbitration agreement should be the law chosen by the parties to govern their substantive legal relationship or the law of the seat of the arbitration. The issue is unlikely to be settled soon at international level. However, without embracing extreme approaches that purport to determine the validity of the arbitration agreement without reference to any national legal system, a more ‘transnational’ approach should be encouraged. This may emerge, based on three structured principles which would be desirable for international convergence, namely the non-discrimination principle, the estoppel principle and the validation principle. These principles can be developed without conflicting with the conventional conflicts-of-laws approach which was adopted by the English Court of Appeal inSulamérica.

Beyond the effect of a judgment of the court of the seat setting aside the award, the relationship between a challenge of the award at the seat and enforcement under Article V of the New York Convention is unclear, as is the relationship between two or more sets of enforcement proceedings in different jurisdictions. The Article explores whether a judgment rejecting a challenge of the award at the seat of the arbitration or granting or refusing enforcement gives rise to an estoppel in further enforcement proceedings. An estoppel would preclude the party opposing enforcement from relitigating issues that have been decided in the previous judgment as well as issues that could have been raised, and ultimately decided, in the previous proceedings. Furthermore, this Article examines whether a party who does not challenge an arbitral award at the seat of the arbitration or does not oppose an application for enforcement of the award can raise, in further enforcement proceedings, a defense that could have been a ground for challenging the award at the seat or opposing its enforcement in previous proceedings. Broadly, the answer to these questions has been that a judgment rejecting a challenge of the award at the seat or granting or refusing its enforcement does not prevent the unsuccessful party from opposing the enforcement of the award in a foreign country and that the unsuccessful party can elect whether to challenge the award at the seat or to wait and raise any ground of invalidity of the award in enforcement proceedings. The Article challenges this general assumption and demonstrates how the doctrines of issue estoppel and abuse of process may prevent a party from opposing enforcement on grounds that have been, or could have been, raised at the seat of the arbitration or in previous enforcement proceedings. Consistency and finality are well served by a structured and predictable application of these doctrines on a transnational basis.

Competition policy faces new challenges in its application to digital markets and online platforms. This article develops an analytical framework that rests on three pillars: (a) only conduct that, by restricting competition, reduces long-term social welfare should be prohibited; (b) in applying such a rule, it is important to bear in mind that, under imperfect information, a decision-maker’s task is to minimise the risk and cost of both false convictions and false acquittals: (c) dynamic efficiency is a key driver of long-term social welfare, economic growth and productivity. The article goes on to apply this framework to three specific issues that are debated in relation to digital markets and online platforms: (a) market definition; (b) barriers to entry, including data and Big Data; (c) innovation.

Bid-rigging in public procurement is a particularly serious infringement of competition law. New economic and algorithmic tools can effectively complement the existing enforcement mechanisms to ensure that a virtuous circle of detection, enforcement and compliance is triggered. This short paper sets out a few propositions for further reflection and research in this area.

Blockchain is a technology that enables a secure, transparent, distributed, permanent, robust ledger that can be used to transact and record transactions over the internet. This article explores the role that antitrust can play in the blockchain environment. It examines the antitrust issues that may arise in the phase of development of blockchain projects, especially by joint ventures and consortia involved in R&D and standardisation projects. It them looks at problems that may arise when blockchains are fully operational, discussing whether denial of access to a private blockchain can be anti-competitive and, if so, in what circumstances and whether blockchain can facilitate collusion or even cartel-like behaviour. The role of antitrust is to ensure that the process of development and adoption of this new technology and its applications are driven by market forces and competition on the merits and not by restrictive behaviour aimed at excluding efficient undertakings from the competitive process. It is also to ensure that the new technology is not used to anticompetitive ends by enabling or facilitating collusive conduct or allowing individual firms to preserve or strengthen their market power to the detriment of competitors and consumers and, ultimately, of the society as a whole. To this end, classic antitrust analysis must itself evolve and develop a stronger focus on dynamic competition, market effects, and efficiencies than has traditionally been the case, especially in the European Union.

Although competition law and IP law probably pursue complementary goals, competition laws can: (i) affect remedies available for patent infringement; and/or otherwise, (ii) limit the conduct of patentees, particularly when transferring or licensing their patents. This chapter discusses the cases in which tensions between the protection of patents in complex products and the competition laws have arisen or may arise, particularly as regards the ability of owners of standard essential patents (SEPs) to monetise their patents either by seeking an injunction against implementers or by refusing to grant licences complying with previously given commitments—generally, commitments to license on fair, reasonable and nondiscriminatory (FRAND) terms. This chapter also examines potential competition law constraints on the pricing of patent licences, other licensing terms, multi-level licensing and level discrimination, patent pools, sale of patent portfolios and patent acquisitions.

This chapter contributes to the debate by examining the problem of the law applicable to the existence, validity, and effectiveness of the arbitration agreement when there is no express choice of such a law. It aims to set out framework for the development of a possible 'transnational' solution to the problem so that convergence and predictability can, with time, be achieved. The French courts adopt a transnational approach to the arbitration agreement, and therefore it was not strictly necessary to apply the estoppel approach. The chapter explains why a separate inquiry into the law governing the arbitration agreement is necessary and discusses the implications of such a separate inquiry. It reviews three possible approaches to determining the law governing the arbitration agreement, namely the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of 'transnational' rules.

This chapter argues that, in certain circumstances, a party cannot re-litigate issues that have already been litigated, or could have been litigated, in proceedings that have actually been brought before the courts of the country of the arbitral seat. It examines the traditional approach to the relationship between the remedies at the seat and enforcement proceedings and demonstrates that such an approach is neither required under the New York Convention nor necessarily desirable as a matter of policy. The chapter identifies the English law doctrines of res judicata and abuse of process as possible constraints on the unsuccessful party's ability to raise, under article V of the New York Convention, any grounds that it raised or could have raised in a challenge against the award at the seat of the arbitration. It discusses the relevance and potential application in enforcement proceedings of two strands of the doctrine of res judicata: cause of action estoppel and issue estoppel.

This article examines whether the current institutional framework for the enforcement of EU competition law under Regulation 1/2003 is compatible with the principle of effective judicial protection. This question is answered by developing a test which takes into account, in a structured way, all the contextual factors of the case in the light of the objective pursued by the Legislature in enacting a given enforcement system. Comparative analysis of United States and Canadian constitutional law provides key insights for the development of such a test. This article concludes that the current system under Regulation 1/2003 is unconstitutional insofar as judicial review of Commission decisions by the EU courts is deferential. However, while the current trend is to move to a correctness standard of review across the board, a system in which a competition authority with sufficient safeguards of independence and impartiality of the decision-maker is subject to deferential judicial review in appropriately defined matters is more in line with the institutional balance between the European Commission and the EU courts envisaged by the EU Treaties and Regulation 1/2003, has advantages as a matter of policy over a system in which a court has the duty to review the merits of a first instance administrative decision, and would be compatible with the constitutional standards in force in leading common law systems such as the United States and Canada.