The Incentives to Arbitrate (or to Settle) Antitrust Damages Actions under Directive 2014/104

D. De Meulemeester, M. Berlingin, B. Kohl (eds.), Liber Amicorum Cepani 1969 – 2019 (Wolters Kluwer 2019), pp. 413~426

14 Pages Posted: 6 Jan 2020

See all articles by Yves Herinckx

Yves Herinckx

Herinckx SRL; Brussels Court of Appeal

Date Written: November 15, 2019

Abstract

The European Directive 2014/104 of 26 November 2014 deals with the private enforcement of competition law in the European Union, i.e. with damages claims arising from breaches of competition law. In its recital 48, the Directive states that it wishes to encourage the arbitration of these claims and their settlement. Various provisions of the Directive seek to constitute incentives to arbitration and settlement. This paper analyses these provisions and assesses their effectiveness, or lack of.

The Directive facilitates partial settlements of antitrust damages claims, whether in the form of a settlement with just one member of the infringing cartel for part of the claimants’ losses, or in the form of a settlement with just one claimant for its full losses: the directive contains mechanisms that ensure the finality of these types of partial settlements and avoid that they be undermined by the joint and several liability of all infringers and the resulting risk of later contribution claims against the settling co-infringer. The paper concludes that the Directive creates useful incentives to settlements but not to arbitration.

Keywords: arbitration, settlement, antitrust, private enforcement

JEL Classification: K21, K41, K42

Suggested Citation

Herinckx, Yves, The Incentives to Arbitrate (or to Settle) Antitrust Damages Actions under Directive 2014/104 (November 15, 2019). D. De Meulemeester, M. Berlingin, B. Kohl (eds.), Liber Amicorum Cepani 1969 – 2019 (Wolters Kluwer 2019), pp. 413~426. Available at SSRN: https://ssrn.com/abstract=3503498

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