Originally from Dispute Resolution Journal

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Recent Decisions by National Courts

GERMANY

In a judgment of the Regional Court of Dortmund dated September 13, 2017 (Docket No 8 O 30/16 (Kart)) but only recently published, the court held that if a cartel damages claim is brought on the basis of a contract subject to an arbitration agreement, that claim is subject to arbitration. This holding came somewhat as a surprise as it is contrary to the prevailing view in legal literature.

Background

In 2003 the plaintiff (a consortium established for the construction of a railway project) had procured rails and related services from the defendant (the legal successor of a member of the so-called “rail cartel” in Germany) under two separate contracts. The contracts provided for arbitration under the “Rules of Arbitration for the Building Industry” issued by the German Concrete Association (Deutscher Betonverein e.V.) and the German Society for Construction Law (Deutsche Gesellschaft für Baurecht e.V.).

The plaintiff filed a claim before the Dortmund Regional Court seeking damages for allegedly having paid excessive prices under the two contracts due to the existence of a cartel. The defendant objected to the jurisdiction of the Regional Court of Dortmund on the basis of the arbitration clauses in the contracts. Relying on the judgment of the Court of Justice of the European Union (ECJ) in CDC v Evonik (C 352/13),  which dealt with jurisdiction clauses, the plaintiff argued that the cartel damages claims fell outside the scope of the arbitration clauses since the parties did not foresee any such claims when they agreed to the arbitration clauses.