In this important decision on jurisdiction and venue for competition damages claims arising from an alleged price fixing cartel, the High Court (Marcus Smith J) concluded that claims by Microsoft against Sony in respect of its participation in the cartel should be stayed pursuant to arbitration clauses contained in supply contracts between them; and that in consequence, the Court had no jurisdiction over other alleged participants who had been served outside the jurisdiction.
The decision is the first occasion upon which the English Court has had the opportunity to consider the proper interpretation of arbitration clauses in the context of claims in respect of an alleged price-fixing cartel, and in this connection the principles arising from leading domestic and EU authority, including Fiona Trust, The Angelic Grace, Ryanair and CDC. Following a 5 day hearing, Marcus Smith J concluded that the arbitration clauses were properly to be construed as sufficiently broad to encompass Microsoft’s claims having regard to the terms of the supply contracts, which included express good faith pricing obligations. The Judge concluded that parallel claims in contract could be brought encompassing Microsoft’s claims against Sony, in consequence of which the arbitration clauses were engaged. The Judge also concluded that the EU law principle of effectiveness was no obstacle to granting a stay. The decision also provides further guidance regarding service out of the jurisdiction under the “necessary or proper party” gateway in CPR PD 6B para. 3.1(3) and the tort gateway 3.1(9)(a), containing a detailed review of the leading authorities in respect of these provisions.
Kieron Beal QC and Andrew Scott (instructed by Mischon de Reya) acted for Microsoft.
Thomas de la Mare QC (instructed by Cleary Gottlieb) acted for Sony.
A copy of the judgment can be found here.