Brexit and Competition Disputes

By Michael Byrne, Kate McKenna

Uncertain ability to enforce UK court competition law judgments in Ireland

Following Brexit, the UK will no longer enjoy the enforceability of judgments under the Brussels Regulation, under which a judgment of the courts of an EU Member State is recognised in all other Member States without any special procedure. Enforcement of non-EU judgments (which UK judgments will be, post Brexit) in an EU Member State is a matter for the local law. Further, EU law will no longer be directly applicable in the UK and therefore, there is likely to be some divergence in implementation and interpretation of laws between it and the remaining EU Member States.

In the event of a hard Brexit, there is significant opportunity for Ireland, as the largest remaining common law jurisdiction in the EU and where English is the spoken language, to become a centre for dispute resolution and, in particular, competition litigation.

Companies will need to carefully consider any plans to bring a competition law claim against an Irish defendant in the UK courts as they will potentially face “passporting” difficulties enforcing competition law judgments from UK courts in Ireland.

Ireland an increasingly attractive venue for ‘follow-on’ competition litigation due to potential additional hurdles in relying on EU / member state competition enforcement decisions and judgments to claim damages in UK

Ireland has the capacity to become a hub for competition law damages claims following the recent transposition of the EU Damages Directive into Irish law. Also of importance is the existence of a competition law list in the High Court, Ireland’s document discovery rules and Ireland being an English-speaking Common Law jurisdiction within the EU. Post-Brexit, claimants will potentially face difficulty claiming damages on foot of cartel / abuse of dominance decisions from the EU Commission or national Member States in the UK courts. This being the case, claimants for damages as a result of breaches of competition law will need to carefully consider jurisdiction when instituting proceedings.

Compliments of Matheson, a member of the EACCNY