Arbitrability of Cartel Damages Claims in the European Union : CDC, Kemira, and Microsoft Mobile

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. The Amsterdam Court of Appeal in Kemira Chemicals Oy v CDC Project 13 SA held that they do not. In Microsoft Mobile Oy (Ltd) v Sony Europe Ltd, Peter Smith J held that they do, provided that the claimant can plead an arguable contractual claim with which the tortious claim would be closely connected. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims or to disapply them and that the approach in Microsoft Mobile is not only correct under EU law but more in line with general principles of conflict of laws and international arbitration law. Indeed, the approach in Microsoft Mobile may still be quite restrictive because there is a reasonable argument that, whenever a price charged under a contract is unlawful because of a cartel between the seller and third parties, a cartel damages claim in tort arises in connection with the contract and should therefore fall under a sufficiently widely drafted arbitration clause. Finally, it cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a very high one. However, given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature and involving third parties who may not be bound by the same arbitration clause or by any arbitration clause at all, it is difficult to conceive of circumstances in which this threshold may be met