An arbitration clause did not prevent the Rotterdam District
Court from considering itself competent to review a damages claim
initiated by a litigation vehicle against a number of lift
manufacturers, following a cartel decision by the European
Commission. According to the court, the arbitration clause laid
down in the lift manufacturers' customer contracts only applies
to disputes directly linked to the contract and which are
foreseeable at the time of the conclusion of the contract. Given
their secretive nature, cartel arrangements and the resulting
litigation are not foreseeable for non-cartel participants.
Companies should therefore keep in mind that they cannot always
rely on these clauses in cartel damages claims.
Litigation vehicle De Glazen Lift initiated damages
claims on behalf of 41 housing corporations against four lift
manufacturers following the European Commission's cartel decision to impose fines on a number of lift
manufacturers. The four lift manufacturers argued that the
Rotterdam District Court lacked jurisdiction to rule on De
Glazen Lift's damages claim as the arbitration clause
included in the general conditions formed part of their customer
The court referred to a recent preliminary ruling by the European Court of Justice on the
applicability of a jurisdiction clause in a cartel damages claim,
using it as the basis to consider itself competent despite the
arbitration clause. According to the ECJ's ruling, a
jurisdiction clause that abstractly refers to all disputes arising
from contractual relationships does not extend to a dispute
relating to the tortious liability that one party allegedly
incurred as a result of the other's participation in an
unlawful cartel. Given that the company suffering the loss cannot
reasonably foresee such litigation when it agreed to the
jurisdiction clause and, as that company had no knowledge of the
unlawful cartel at that time, such litigation cannot be regarded as
stemming from a contractual relationship.
The court considered that the ECJ's ruling applied by
analogy to arbitration clauses and ruled that the arbitration
clause can only apply to disputes which were foreseeable for the
housing corporations at the time they agreed to the lift
manufacturers' contracts. Since this foreseeability was neither
argued nor proven and because of the secretive nature of cartels,
the arrangements and the resulting litigation were not foreseeable
for the housing corporations. As a result, the arbitration clause
did not apply and the court is competent to review the damages
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Damages Directive, which seeks to promote and harmonise the private enforcement of EU competition law before national courts across the European Union – and which was first published in December 2014 after more than ten years of debate – was due to be transposed into national law by each Member State by 27 December 2016
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