Antitrust Forum-Shopping in England: Is Provimi Ltd v Aventis Correct?
Brian Kennelly, May 28, 2010
This article examines the judgment of Aikens J in Provimi Ltd and ors v Aventis Animal Nutrition SA and ors, which opened the door to the stream (if not yet a flood) of non-U.K. claimants bringing competition law damages claims in this jurisdiction. Provimi found that a corporate entity (e.g. a subsidiary) may be liable for implementing a cartel contrary to Article 101(1) TFEU where it is part of the same undertaking as the cartelist, even if it had no knowledge of the cartel and never made sales of the cartelized products to the claimants (§§31, 39-41).
On this basis, and armed with Article 6(1) of the Judgments Regulation,a foreign victim can sue all of the foreign members of the cartel in England provided that there is at least one subsidiary of one of the cartelists in England. Provimi was clearly a welcome decision for U.K. competition litigators. It may, however, be wrong.
This article was cited in the July 27, 2010 UK Court of Appeals Decision in the Cooper Tire/Dow case. View that decision here.