The Regional Court of Dortmund (Judgment of 13 September 2017, 8 O 30/16 [Kart], DE:LGDO:2017:0913.8O30.16KART.00) had to decide, if an arbitration agreement, which was concluded in a suppliers contract between the Plaintiff and the Defendant, also includes compensation claims under antitrust law.
The question was, whether the decision of the ECJ on forum selection clauses in a different antitrust proceeding (Judgment of 21 May 2015, C-352/13, EU:C:2015:335 – Cartel Damage Claims (CDC) Hydrogen Peroxide SA vs Akzo Nobel NV u. a.) can also be applied in this case.
The ECJ decided in the CDC-proceedings, that the requirement of effective enforcement of the prohibition of agreements, decision and concerted practices laid down in European law allow, that in the case of compensation claims for a violation of the prohibition of anti-competitive agreements, decisions and concerted practices, an arbitration agreement or a forum selection clause can be allowed, even if the effect thereof is a derogation from the rules on international jurisdiction.
In the context of the interpretation of Article 5 (3) and Article 6 no. 1 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 012, 16/01/2001 p. 1) the ECJ concluded, that a forum selection clause is only applicable to compensation claims under antitrust law, if at the time the party suffering the loss agreed to the clause, it was reasonably foreseeable that claims for an infringement of the prohibition of agreements decision and concerted practices might arise from this contract. Admittedly, the ECJ also stated, that this will regularly not be the case, as the injured party will not have knowledge about the participation of his contractual partner in an illegal cartel at the above-mentioned time.
Furthermore, compensation claims under antitrust law should only be covered by forum selection clauses, if they are directed towards disputes about the liability in a case of an infringement of competition law. Only under these conditions can such clauses lead to a derogation from the rules on international jurisdiction.
The Regional Court of Dortmund stated in this case (Judgment of 13 September 2017, 8 O 30/16 [Kart], DE:LGDO:2017:0913.8O30.16KART.00, NZKart 2017, 604), that cartel infringements and claims for damages are subject to arbitration in accordance with German law as a matter of principle and that the decision of the ECJ in the CDC-proceeding is not applicable in this case. Within the reasoning of their decision, the court specified that the argument of missing foreseeability is not convincing, as in a different case of a contract violation, like a case of fraud, the respective circumstance is also not known to the injured party. Furthermore, there is no general principle, that aspects which apply to forum selection clauses, also apply to arbitration agreements. Also, the Regional Court showed, that arbitration law is first and foremost genuinely national law and Article 1 (2) lit. d) of Council Regulation (EC) No 44/2001 of 22 December 2000 is clearly exempted from the scope of application. There was no request for a preliminary ruling by the ECJ on the disputed questions in this proceeding.
Ultimately, the Regional Court decided, that (different from the Dutch courts), the case law of the ECJ on forum selection clauses cannot be applied to arbitration agreement and therefore, the arbitration agreement also includes compensation claims under antitrust law, leading to this action being inadmissible.