TILEC Seminar Invitation
Tilburg Law School and Tilburg School of Economics and Management
Thursday 22 May 2014
Enforcement of competition law
Renato Nazzini
Michele Polo
King’s College London
Bocconi University
“Arbitration of Competition Law
“Antitrust, Legal Standards
Disputes and the New EU Directive
and Investment”
on Antitrust Damages Actions”
12.30 - 14.30
M 1003
Lunch will be provided for seminar participants. We cordially invite you to participate.
Please register in advance by sending an e-mail to the TILEC secretariat.
If you are interested in meeting with Renato Nazzini and/or Michele Polo please contact us, meeting
slots are still available.
Renato Nazzini
Arbitration of Competition Law Disputes and the New EU Directive on
Antitrust Damages Actions
Abstract
This paper explores the impact of the proposed Directive of the European Parliament and the Council on
certain rules governing actions for damages under national law for infringements of the competition law
provisions of the Member States and of the European Union (the "EU Directive on Antitrust Damages
Actions" or the "Directive") for arbitration.
The Directive is addressed to Member States and its provisions are, by and large, limited to proceedings
before national courts. The question arises, however, as to their relevance in arbitration. The provisions of
the Directive may become relevant in arbitration in two ways: they may apply as part of the law governing
the substance of the dispute or they may have to be taken into account by an arbitral tribunal indirectly
because of the tribunal's duty to make its best endeavours to render an enforceable award. This latter,
indirect mechanism by which the provisions of the Directive may become relevant, and in practice
applicable, in arbitration deserves some further clarification. Even if certain provisions of the Directive do
not apply to arbitration, they apply to court proceedings, including proceedings for the setting aside or
enforcement of arbitral awards. Therefore, to the extent that the application of these provisions in setting
aside or enforcement proceedings may lead to the annulment, or the refusal of the enforcement, of the
award, they will have to be considered by the arbitrators.
Applying the framework outlined above, this paper explores the relevance in arbitration of the key
provisions of the Directive in the following areas: (1) the right to full compensation excluding punitive,
multiple "or other types of damages"; (2) the disclosure of evidence, including leniency statements and
settlement submissions; (3) the effect of national competition law decisions in damages actions; (4)
limitation periods; (5) joint and several liability; (6) the passing-on of overcharges; (7) the quantification of
damages; (8) consensual dispute resolution.
In conclusion, recommendations will be made as to how arbitration can best function without losing its
appeal as an out-of-court and flexible dispute resolution mechanism based on party autonomy while at
the same time providing effective resolution of competition disputes.
About Renato Nazzini
Renato Nazzini is Professor of Law and Director of Research of the
Centre of Construction Law and Dispute Resolution. Previously, he was
Professor of Competition Law and Arbitration (formerly Reader in Law)
at the University of Southampton, which he joined from the Office of Fair
Trading, where he was Deputy Director of the Legal and Policy
Department. While at the Office of Fair Trading, Professor Nazzini
worked with a number of European and international institutions
including the European Commission and the Organization for Economic
Cooperation and Development (OECD) and was appointed to the ICC
Task Force on Arbitrating competition law issues. He is the General
Editor, together with Gordon Blanke, of Global Competition Litigation
Review and is a member of the editorial board of the European
Business Law Review.
Research areas:
Competition law, commercial arbitration and ADR.
Michele Polo
Antitrust, Legal Standards and Investment
Abstract
We study the interaction of a firm that invests in research and, if successful, undertakes a practice to
exploit the innovation, and an enforcer that sets legal standards, fines and accuracy. In this setting
deterrence on actions interacts with deterrence on research. When the practice increases expected
welfare the enforcer commits not to intervene by choosing a more rigid per-se legality rule to boost
investment, moving to a more flexible discriminating rule combined with type-I accuracy for higher
probabilities of social harm. Patent and antitrust policies act as substitutes in our setting; additional room
for per-se (illegality) rules emerges when fines are bounded. Our results on optimal legal standards
extend from the case of (uncertain) investment in research to the case of (deterministic) investment in
physical assets.
About Michele Polo
Michele Polo (B.A. in Economics at Bocconi University, M.Sc. in
Economics at the London School of Economics, Ph.D. in Economics at
Bocconi University) is Full Professor in Economics at Bocconi University
and Research Fellow at Igier. His main research interests are in
Industrial Organization and Competition Policy, but he has also worked
on regulation, voting theory, law enforcement and the economics of
organized crime. He has published several papers in international
journals including the Journal of Industrial Economics, the International
Journal of Industrial Organization, the European Economics Review and
Economic Policy.
Research areas:
Industrial economics, antitrust, regulation and political economics.
TILEC Seminars are organized monthly and typically involve one or two academic presentations. They
are organized for the benefit of faculty members, other researchers at Tilburg University and everyone
interested in our research themes and activities. Advanced registration is required.
For the complete TILEC events overview, please visit our webpage.
Tilburg Law and Economics Center (TILEC), Tilburg University
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Visiting address: Prof. Cobbenhagenlaan 221, Montesquieu building,
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T 0031 13 466 8789
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