Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors

For competition claims spanning several countries, the applicable law depends on the governing instrument and period. Under Rome II, the law is generally that of the country where the affected market is situated. Under section 11(2)(c) of the Private International Law (Miscellaneous Provisions) Act 1995, the court identifies each element of the alleged tort, locates those elements, and assesses which is most significant. In competition claims, the restriction in the affected national market may outweigh the place where fees or rules were adopted. Section 12 requires a clear preponderance of connecting factors before displacement. For earlier claims, the lex loci delicti is the country containing the affected market. English limitation rules were not displaced by EU principles of effectiveness or equivalence.

About 1,300 retailers brought claims against companies in the MasterCard group, alleging that multilateral interchange fees and the Central Acquiring Rule unlawfully restricted competition and caused excessive merchant service charges. The court tried a preliminary issue concerning applicable law for claims relating to Germany, Italy, Poland and the United Kingdom.

The claims covered periods governed respectively by Rome II, the Private International Law (Miscellaneous Provisions) Act 1995, and English common-law choice-of-law rules. The issues included the location and significance of events constituting the alleged competition tort, whether section 12 displaced the section 11 rule, and whether English limitation law could be excluded.

1. For events occurring on or after 11 January 2009, the parties agreed that the applicable law under Article 6(3) of Rome II was the law of the country where the relevant Merchant was established.
2. Under section 11(2)(c) of the Private International Law (Miscellaneous Provisions) Act 1995, the court must identify the elements of the alleged tort, locate them, and make a value judgment as to which is most significant. A restriction of competition is a separate event capable of having its own location, whether pleaded by object or effect.
3. The restriction occurred in each national acquiring market in which the relevant Claimants operated. The restriction was the most significant element of the alleged tort. The applicable law was therefore that of the country where the relevant Merchant was based, not Belgium, even if fees and rules had been set there.
4. Section 12 did not displace that result. The Claimants had not shown that Belgian law was substantially more appropriate or that a clear preponderance of connecting factors favoured Belgium.
5. For the common-law period, the lex loci delicti was the country containing the affected market and the alleged restriction of competition. The exception to double actionability required clear and satisfying grounds in an exceptional case, which had not been shown.
6. The Foreign Limitation Periods Act 1984 required both English and foreign limitation law to be considered where both were relevant. The Brussels Recast Regulation and EU principles of effectiveness and equivalence did not require English limitation rules to be disapplied. The parties were directed to agree an order reflecting the conclusions.