Should Jurisdictional Clauses be Interpreted Differently in Competition Law Cases? A Comment on Case C 595/17 Apple ECLI:EU:C:2018:854

November 2018

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

Should Jurisdictional Clauses be Interpreted Differently in Competition Law Cases? A Comment on Case C 595/17 Apple ECLI:EU:C:2018:854 By Pedro Caro de Sousa (OECD)1

Introduction

Does a widely worded jurisdictional clause encompass competition law disputes? In Europe, the starting point for this analysis is Article 23 of Regulation No 44/2001 – i.e. the Brussels I Regulation – which allows parties to agree on the jurisdiction where to settle any disputes which have arisen or which may arise in connection with a particular legal relationship.

In CDC Hydrogen Peroxide,2 the European Court of Justice (“ECJ”) held that a generally worded jurisdiction clause “can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into.”3 It follows that generally worded jurisdiction clauses cannot extend to a dispute relating to the tortious liability that one party allegedly incurred as a result of its participation in an unlawful cartel. This is because a cartel could not have been reasonably foreseen by the parties when they entered into such a clause, and such litigation cannot be regarded as stemming from a contractual relationship.4

What if one …

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