GCR Antitrust Litigation 2009
Enforcing Competition Law in the UK, Europe and the US

Friday 2 October 2009, The King's Fund, London W1

Damages actions for antitrust infringements in Europe are on the increase: national courts are regularly asked to rule on claims in follow-on actions once the European Commission or national competition authority has issued an infringement decision; claimants also sue for damages in stand-alone actions. Moreover, antitrust infringements are commonly pleaded as a defence or as the basis of a counterclaim in commercial litigation and arbitral tribunals are increasingly required to adjudicate on antitrust issues.

The European Commission has been exploring ways in which private antitrust enforcement might be encouraged while avoiding the excesses of the US system. Following on from a White Paper a draft directive is expected in the autumn, possibly by the time of this conference.

Although London seems a natural forum for private antitrust litigation: the Law courts - and the CAT - are highly versed in competition law and have well-developed procedural rules for disclosure; developments elsewhere in Europe suggest the number and type of antitrust disputes heard in national courts in many member states will increase.

GCR's 2009 Antitrust Litigation conference has brought together leading competition and litigation experts from the UK, other EU member states and the US, who will provide practical guidance for potential claimants and defendants who will address these issues:

• Jurisdiction and choice of law - where to bring your claim?
• Forum shopping and the implications of Rome II
• Disclosure, privilege and access to the file of competition authorities
• Arbitration and mediation in competition cases
• Actions for damages - representative actions, opt-in and opt-out - developments in the UK, Europe and the US
• Compensatory damages, pass-on defence and burden of proof
• Funding private actions
• A view from the Judiciary - is competition law litigation different?

Morning Chairman

John Pheasant
Partner, Hogan & Hartson LLP

08:30

Registration and coffee

09:00

Chairman's opening remarks

09:10

Setting the Scene: An Update on Key Recent Competition Damages Claims

• Limitation and jurisdiction issues
• Claims for negative declarations
• Stay applications and pending CFI appeals

• Jon Lawrence
  Partner, Freshfields Bruckhaus Deringer LLP

09:45

Jurisdiction and Choice of Law: Forum Shopping and the Implications of Rome II

• The legal framework
• Practical examples
• The Italian torpedo
• Use of EC law in US courts - Air Cargo and Polyeurethene - can it happen? Is it proper?
• Tactical considerations

Mark Hoskins QC
Brick Court Chambers
• Daniel Beard
  Monckton Chambers

10:30

Panel discussion and comment

• Mario Siragusa
  Partner, Cleary Gottlieb Steen & Hamilton LLP
• Michael Sanders
  Partner, Linklaters LLP

11:00

Coffee break

11:20

Disclosure, Privilege and Access to the Competition Authorities' Files

• Disclosure in the UK
• Different rules on privilege
• Interface with Competition Authority investigations and access to file
• The implications in criminal investigations
• The criminal disclosure regime
• Disclosure in a global case
• Can a UK immunity applicant retain privilege?
• View of disclosure from a continental lawyer's perspective

• Helen Davies QC
  Brick Court Chambers
• Michael O'Kane
  Partner, Peters and Peters
• Eddy de Smijter
  Private Enforcement Unit, DG Competition, European Commission

Comment:

• Melanie Thill Tayara
  Partner, Salans

12:45

Lunch

Afternoon Chairman

Elizabeth Morony
Partner, Clifford Chance LLP

13:45

Arbitration and Mediation in Competition Law Cases

• Competition law as public policy
• The arbitrability of competition law issues
• Eco Swiss China Time v. Benetton
• Arbitration and litigation compared and contrasted: illustration

• Romano Subiotto QC
  Partner, Cleary Gottlieb Steen & Hamilton LLP
• Bill Wood QC
  Barrister, Brick Court Chambers

An industry perspective:

• Nicola Northway
  Head of Group Competition Law, Barclays Bank plc

14:30

Antitrust Damages: A Claimant's View (and Frustrations)

• Representative actions following Emerald and others v British Airways
• Opt-in and opt-out: developments in the UK, Europe and the US
• Compensatory damages, pass-on defence, direct and indirect purchaser claims, burden of proof
• Non-cartel damages and declaratory relief claims outside the area of cartels
• Injunctions

• Stephen Kon
  Partner, S J Berwin LLP
• Robert O'Donoghue
  Barrister, Brick Court Chambers
• Eddy de Smijter
  Private Enforcement Unit, DG Competition, European Commission
• Stephen Kon
  Partner, Howrey LLP
• Christof Swaak
  Partner, Stibbe

15:55

Tea

16:10

Funding Private Actions

• Funding in the UK:
  • Adverse costs risk: ATE and funding - friends or foes?
  • Own costs - risk or funding?
• Funding outside the UK: proposals and developments in the UK
  • Alternative model?
  • Preferable approach?
  • Developments in Germany
  • Approach in other EU Member States

• Anthony Maton
  Partner, Hausfeld LLP
• Ingo Brinker
  Partner, Hausfeld LLP
• Samantha Mobley
  Partner, Baker & McKenzie LLP

17:00

A View from the Judiciary

• Competition law litigation - is it different?
• The role of 'precedent' and the decisions of national competition authorities
• Economic evidence and the burden of proof

• Lord Hoffmann
  Brick Court Chambers
• Judge Nicholas Forwood
  Court of First Instance of the EC

17:40

Chairman's summing up and close