Arbitrating Competition Law Disputes: a matter of policy?
A commentary on the OECD Competition Commission conclusions on using arbitration to effectively resolve competition law disputes
By Francesca Richmond and Sarah West
There has been increasing use of arbitration to resolve disputes involving competition law issues in recent years. However, it is surprising that the number is not even greater given that arbitral processes are particularly suited to this type of complex, multi-jurisdictional dispute. Claimants can be nervous that the validity of such awards might be challenged on public policy grounds, however, in practice there are only limited circumstances in which a civil claim based upon competition law is likely to also engage public po [...]
Evolution or Revolution? The Italian Competition Authority and the Pfizer Decision: A Reply to Thomas Graf
In his last blog, Thomas Graf pointed out, as brilliantly and persuasively as he customarily does, the key features and implications of the Jan. 11, 2012decision of the Italian Antitrust Authority (“IAA”) in the Pfizer case, coming to the conclusion that
“The intervention of the Italian Authority therefore expands the application of Article 102 TFEU to patent related conduct in a manner that deprives Article 102 TFEU of meaningful limiting principles. It does not identify improper conduct that is distinct from and goes beyond the lawful use of patent instruments provided by the patent system. If the decision were to stand this would therefore considerably increase legal uncertainty and p [...]
Upcoming judgment in case C-17/10 Toshiba and Others to shed light on the question of parallel proceedings within the ECN
On 14 February, the Court of Justice will deliver a ruling on a preliminary reference by a Czech Regional Court in Brno, which is likely to provide welcome guidance on the issue of parallel proceedings within the ECN and the principle of ne bis in idem.
The case concerns the legality of the Czech NCA’s decision against the Gas Insulated Switchgear cartel, which was also sanctioned by the European Commission’s decision of 24 January 2007.
The Gas Insulated Switchgear cartel and its prosecution in Europe
The nearly world-wide GIS cartel, uncovered in 2004, involved various well-known European and Japanese undertakings (ABB, Alstom, Areva, Fuji Electric, Hitachi, Japan AE Power Systems, [...]
Italian Competition Authority Challenges Patent Measures
The Italian Competition Authority started the New Year with a bang by imposing a fine of more than EUR 10 million on Pfizer for alleged abuses of the patent system in violation of Article 102 TFEU. The decision is available here.
The Authority’s decision goes considerably further than the General Court’s AstraZeneca judgment in qualifying patent related conduct as abusive. The Authority does not identify aspects of Pfizer’s conduct that went beyond the use of legal instruments provided by the patent system. Instead, the Authority appears to suggest that reliance on such patent instruments can in itself constitute an abuse. This contrasts with AstraZeneca where the conduct at issue [...]
The Dongfeng Nissan Case and the Gaps of China’s Competition Law Regime in Tackling Vertical Restraints
The recent Dongfeng Nissan Case shed some interesting lights on the status of vertical restraints rules in China, three years after China’s Anti-Monopoly Law (AML) became effective in August 2008. Currently, China’s competition law regime is still insufficiently equipped to assess and deal with vertical restraints, in spite of frequent complaints on alleged anticompetitive vertical restraints in the Chinese market.
For example, car manufacturers in China typically prohibit authorized car parts suppliers from selling genuine car parts to independent repairers or distributors. Genuine car parts are often exclusively distributed through authorized car dealers, which both sell new cars and [...]
U.S. FTC Scrutinizes Interplay Between Authorized Generics and Patent Settlements
The U.S. Federal Trade Commission has recently released two reports relating to the pharmaceutical industry. A significant theme in both reports is a concern that brand name pharmaceutical companies are using the threat of launching an authorized generic to make deals that delay generic entry. These reports shine a spotlight on the interplay between authorized generics and pharmaceutical patent settlements, and indicate strong FTC opposition to a practice that has never been found unlawful.
Report on Authorized Generics
On August 31, the FTC issued its final report analyzing the competitive significance of authorized generics. In the U.S., generic pharmaceutical products are typically sold b [...]
