This is an Insight article, written by a selected partner as part of GCR's co-published content. Read more on Insight
We are delighted to edit a further edition of the GCR Private Litigation Guide. Part I of the Guide includes 10 chapters written by leading practitioners, exploring in depth the key themes raised in competition litigation across the globe, such as jurisdictional considerations, class actions and damages. These chapters explore different perspectives on key issues, including views from the standpoint of both claimant and defendant and from different parts of the world.
Part II of the Guide contains an invaluable summary of the position on a jurisdiction-by-jurisdiction basis to allow quick access to key information and a cross jurisdictional analysis. It takes the form of a series of questions covering the most critical private litigation issues. Experienced practitioners in eight countries have supplied digestible, targeted responses to these questions. The Guide presents these insights in an accessible manner that lets users focus on specific issues and compare them across jurisdictions.
This Guide reflects the remarkable growth of private competition litigation across the world. Indeed, litigating antitrust or competition claims has become a global matter, requiring coordination among jurisdictions, and requiring counsel and clients to understand the rules and procedures in many different countries and how the approaches of courts differ with regard to key issues.
The landscape is continuing to evolve at pace.
In Europe, three distinct trends are evident. First, the effect of the EU Directive on competition damages claims, implemented by Member States in 2016 and 2017, is now being felt. Some jurisdictions in which there had previously been little private competition litigation have seen a dramatic growth of claims, such as Spain. By requiring Member States to ensure that law and procedures meet minimum requirements, the Directive has no doubt gone a long way to meet the objective of facilitating claims. Although those minimum requirements are now met in all EU jurisdictions, it would be a mistake to think this has resulted in a harmonised approach. In fact, there is variation in the way in which the Directive has been implemented and there remain significant differences between the regimes in Member States. Claimants, defendants and their lawyers need to be on top of these. However, just as a degree of harmonisation is achieved within the EU, the UK’s departure from it as a result of Brexit will throw up fresh challenges in this area. The second trend is the expansion of different forms of class action in Member States. The opt-out regime in the UK is beginning to bite, with the first claim recently certified and many others waiting their turn, and 2020 saw the introduction of new regimes in the Netherlands and Italy. These promise to change the dynamic in the EU yet again. The third trend is the developing depth of experience and a lengthening track record of judicial decisions on important issues in those jurisdictions in which private competition litigation has been more common for some time, such as the UK, Germany and the Netherlands.
In the United States, where private damages procedures are well developed, competition litigation has become increasingly high-profile and complex, and courts continue to grapple with various procedural issues related to competition lawsuits. Many of these disputes make their way to federal appellate courts and the US Supreme Court, where every decision has the potential to dramatically affect the law. In recent years, for example, the Supreme Court has weighed in on the interpretation of long-standing precedent prohibiting indirect purchasers from suing for damages under US federal law and addressed the appropriate analysis of two-sided markets in antitrust litigation. In addition, standards applicable to class actions have been hotly contested in lower courts in recent years, and a new round of disputes about the circumstances under which antitrust plaintiffs may certify a class is emerging as a key issue before appellate courts.
In other parts of the world, the story is more complex. For example, in Asia, private competition litigation levels generally continue to rise in Japan but have fallen from a recent high in China. South America, Brazil and Mexico now have laws in place to facilitate private competition claims, but actual litigation is still nascent. Canada has also seen recent important developments regarding certification of competition class actions, but has yet to see an award of damages at trial in such a case. Nevertheless, it is increasingly apparent that these jurisdictions, and others covered in this Guide, cannot be ignored in any assessment of the threats and opportunities private competition litigation brings.
Antitrust and competition practitioners, as well as corporate counsel, often require a basic understanding of the key aspects of private antitrust litigation in many different countries. For example, how does one bring a claim in the first instance? What are the standards for collective actions? Can indirect purchasers collect damages and is a passing-on defence available? Different countries and different jurisdictions take a divergent approach to these and many other questions.
GCR has created this book to address this daunting task and to provide a method of comparing and contrasting specific issues and topics across jurisdictions. The Guide was developed in conjunction with the competition litigation team at Hogan Lovells, which has extensive experience litigating antitrust and competition claims in many jurisdictions.
1 Nicholas Heaton and Benjamin Holt are partners at Hogan Lovells.