Author Archives: Tom de la Mare

PRIVATE ACTIONS: The CRA 2015 giveth; and the 2015 CAT Rules taketh away

Introduction

Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition law infringers up and down the land[1] must be rubbing their hands in glee at the transitional provisions contained in Rule 119 of the Competition Appeal Tribunal Rules 2015 (“the 2015 CAT Rules” or the “New Rules”).[2]

The glee stems from the fact that these transitional provisions are very broad in temporal and material scope and yet very narrow in terms of gateway they provide into the new promised lands of flexible standalone claims,[3] and of collective redress leading to effective enforcement of private damages claims.   The problem, in essence is this: these transitional rules set in aspic for an unnecessarily long time the old CAT regime and all its manifest defects, defects which were the express cause for reform in the first place. Continue reading

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Filed under Damages, Policy, Procedure

Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?

Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts of laws, both in relation to issues of jurisdiction and applicable law. On the jurisdictional side conventional wisdom has it that there are three main routes by which Claimants can seize English jurisdiction.

First, you can find a so-called “Anchor Defendant” that is a cartelist (and it must be an addressee cartelist if in the CAT so long as Mersen is good law) domiciled here, against which you can proceed as of right under Article 2 of the Brussels Regulation.  Then you can bring in other cartelists under Article 6 (i.e. a defendant against whom the claim is closely connected to that against the anchor defendant such that determining them together avoids the risk of irreconcilable judgments).  Where the Anchor Defendant is an addressee of the decision this tactic is unproblematic. Continue reading

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Filed under Conflicts, Damages, Procedure