On 26 November 2014 the EU Directive on Damages for Infringements of Competition Law (Directive 2014/104/EU) was adopted. Its purpose is to promote and to make it easier for victims of anticompetitive behaviours to seek compensation from infringing parties before national courts. Although the Directive had to be transposed into Member States’ legal systems by 27 December 2016, this has not been the case in a number of Member States, including Spain, where a first draft of the law transposing the Directive was published at the end of 2015 by the Spanish Ministry of Justice. No real progress seem to have been made since then.
Most provisions in the Directive apply only to actions for damages before national judicial courts. Accordingly, these provisions do not apply to arbitration. However, it also true that the Directive specifically encourages the submission of this type of claims to «consensual dispute resolution mechanisms » such as arbitration, mediation or conciliation.
This paper analyses the potential impact of the Directive on arbitrations about claims for damages for infringement of competition law, with a special focus on those provisions related to evidence, namely: (i) the binding effect of a final decision by a national competition authority or a national court establishing the existence of an anticompetitive infringement; (ii) the submission of decisions of competition authorities and courts of other Member States as prima facie evidence that an infringement has occurred, placing the burden of proof on the defendant; (iii) the disclosure regimen comprising evidence included in the file of a competition authority (i.e., whether the carve out of the statements made in a leniency submission apply to arbitration); and (iv) certain rules on the standard and burden of proof when quantifying the damages suffered by the victim of the anticompetitive behaviour.
Iurgium [previously Spain Arbitration Review]