In context

Court hears cartel damages claim despite arbitration clause

July 13, 2016
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In context

An arbitration clause did not prevent the Rotterdam District Court from considering itself competent to review a damages claim initiated by a litigation vehicle against a number of lift manufacturers, following a cartel decision by the European Commission. According to the court, the arbitration clause laid down in the lift manufacturers’ customer contracts only applies to disputes directly linked to the contract and which are foreseeable at the time of the conclusion of the contract. Given their secretive nature, cartel arrangements and the resulting litigation are not foreseeable for non-cartel participants. Companies should therefore keep in mind that they cannot always rely on these clauses in cartel damages claims.

Litigation vehicle De Glazen Lift initiated damages claims on behalf of 41 housing corporations against four lift manufacturers following the European Commission’s cartel decision to impose fines on a number of lift manufacturers. The four lift manufacturers argued that the Rotterdam District Court lacked jurisdiction to rule on De Glazen Lift’s damages claim as the arbitration clause included in the general conditions formed part of their customer contracts.

 

The court referred to a recent preliminary ruling by the European Court of Justice on the applicability of a jurisdiction clause in a cartel damages claim, using it as the basis to consider itself competent despite the arbitration clause. According to the ECJ’s ruling, a jurisdiction clause that abstractly refers to all disputes arising from contractual relationships does not extend to a dispute relating to the tortious liability that one party allegedly incurred as a result of the other’s participation in an unlawful cartel. Given that the company suffering the loss cannot reasonably foresee such litigation when it agreed to the jurisdiction clause and, as that company had no knowledge of the unlawful cartel at that time, such litigation cannot be regarded as stemming from a contractual relationship.

 

The court considered that the ECJ’s ruling applied by analogy to arbitration clauses and ruled that the arbitration clause can only apply to disputes which were foreseeable for the housing corporations at the time they agreed to the lift manufacturers’ contracts. Since this foreseeability was neither argued nor proven and because of the secretive nature of cartels, the arrangements and the resulting litigation were not foreseeable for the housing corporations. As a result, the arbitration clause did not apply and the court is competent to review the damages claim.

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