The Applicability of Foreign Antitrust Law

Claims for damages under antitrust law are of steadily increasing importance. In his doctoral dissertation, former Institute research assistant Jakob Olbing comparatively examines the applicability of foreign antitrust law before German and US courts. Following an in-depth assessment of the current legal situation, Olbing outlines possible future developments affecting the application of foreign antitrust law in proceedings for damages.

On a global level, antitrust law is fragmented into many individual national legal systems; in the case of the European Union it is a regional legal system. Presently, private plaintiffs who have suffered damages abroad as a result of an international antitrust violation face substantial hurdles in asserting their claims. It is only in the last decades that CJEU case law and legislative provisions have attempted to systematically strengthen the private enforcement of antitrust law. In this context, the cross-border enforcement of antitrust damages has also been revised in the Rome II Regulation. According to that instrument, the courts of EU Member States can also apply foreign antitrust law where plaintiffs allege that they have suffered damages abroad. In the US, by contrast, private enforcement of US antitrust law has a much longer tradition and plays a central role in antitrust enforcement. However, damages suffered abroad also pose a challenge for US federal courts.

Jakob Olbing shows that both German courts and US federal courts can and should apply foreign antitrust law within the scope of their jurisdiction. He concludes that in neither legal system is a special treatment of foreign-law-based antitrust damages claims legally required under conflict-of-law rules. Such claims under foreign antitrust law are not subject to a general non-application rule, and a presumed separation of public and private conflict-of-law rules does not have any significant effect upon them.

Dr. Jakob Olbing studied law at the Albert-Ludwigs-Universität zu Freiburg and at the Chinese University of Hong Kong. From 2019 to 2023 he was a research assistant at the Institute. As a doctoral candidate he was supported by a scholarship of the Stiftung der deutschen Wirtschaft and spent the fall semester 2022 as a visiting scholar at Harvard Law School. In 2024 he was awarded his doctoral degree by the University of Hamburg.

 

Image: © Max Planck Institute for Comparative and International Private Law / Bastian Kurzynsky