Arbitration Clauses and Antitrust Damages in the EU: Where are We Now?

By Yves Botteman & Camille Keres

This article examines under which circumstances claimants may rely on arbitration clauses – contained in commercial contracts that they would have entered into with defendants – to bring antitrust damage claims. While the early case law showed reluctance to make use of arbitration clauses in the context of antitrust damage claims, a few EU jurisdictions have recently moved towards more arbitration friendly solutions, although not without conditions and limitations. In short, the key parameter for enforcing an arbitration clause in an antitrust damage claim appears to be dictated by the foreseeability criterion, i.e. is it reasonably foreseeable for the parties to the commercial relationship that the arbitration clause would apply in the context of future antitrust damage claims?

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