Click here to download the private antitrust litigation 2020 report, published by Getting the Deal Through.

Jurisdictions covered

The following 17 jurisdictions are covered in this report:

China; England and Wales; France; Germany; Greece; Israel; Italy; Japan; Mexico; Netherlands; Norway; Portugal; Spain; Sweden; Switzerland; Turkey; United States.

Questions

The set of questions relating to the topic of private antitrust litigation and answered by the guide for each jurisdiction covered include:

Legislation and jurisdiction

• • How would you summarise the development of private antitrust litigation in your jurisdiction?
• • Are private antitrust actions mandated by statute? If not, on what basis are they possible? Is standing to bring a claim limited to those directly affected or may indirect purchasers bring claims?
• • If based on statute, what is the relevant legislation and which are the relevant courts and tribunals?
• • In what types of antitrust matters are private actions available (eg cartel cases)? Is a finding of infringement by a competition authority required to initiate a private antitrust action in your jurisdiction? What is the effect of a finding of infringement by a competition authority on national courts? (Is it binding or persuasive, and does effect depend on which authority issues the decision?)
• • What nexus with the jurisdiction is required to found a private action? To what extent can the parties influence in which jurisdiction a claim will be heard?
• • Can private actions be brought against both corporations and individuals, including those from other jurisdictions?

Private action procedure

• • May litigation be funded by third parties? Are contingency fees available?
• • Are jury trials available?
• • What pretrial discovery procedures are available?
• • What evidence is admissible?
• • What evidence is protected by legal privilege?
• • Are private actions available where there has been a criminal conviction in respect of the same matter?
• • Can the evidence or findings in criminal proceedings be relied on by plaintiffs in parallel private actions? Are leniency applicants protected from follow-on litigation? Do the competition authorities routinely disclose documents obtained in their investigations to private claimants?
• • In which circumstances can a defendant petition the court for a stay of proceedings in a private antitrust action?
• • What is the applicable standard of proof for claimants? Is passing on a matter for the claimant or defendant to prove? What is the applicable standard of proof?
• • What is the typical timetable for collective and single party proceedings? Is it possible to accelerate proceedings?
• • What are the relevant limitation periods?
• • What appeals are available? Is appeal available on the facts or on the law?

Collective actions

• • Are collective proceedings available in respect of antitrust claims?
• • Are collective proceedings mandated by legislation?
• • If collective proceedings are allowed, is there a certification process? What is the test?
• • Have courts certified collective proceedings in antitrust matters?
• • Can plaintiffs opt out or opt in?
• • Do collective settlements require judicial authorisation?
• • If the country is divided into multiple jurisdictions, is a national collective proceeding possible? Can private actions be brought simultaneously in respect of the same matter in more than one jurisdiction?
• • Has a plaintiffs’ collective-proceeding bar developed?

Remedies

• • What forms of compensation are available and on what basis are they allowed?
• • What other forms of remedy are available? What must a claimant prove to obtain an interim remedy?
• • Are punitive or exemplary damages available?
• • Is there provision for interest on damages awards and from when does it accrue?
• • Are the fines imposed by competition authorities taken into account when setting damages?
• • Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?
• • Is liability imposed on a joint and several basis?
• • Is there a possibility for contribution and indemnity among defendants? How must such claims be asserted (ie, in the same proceedings as the principal claim, or pursued after a judgment or settlement)?
• • Is the “passing on” defence allowed?
• • Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?
• • Is alternative dispute resolution available?