Definitive global law guides offering comparative analysis from top-ranked lawyers
Antitrust Litigation 2026
Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Franz Hoffet Homburger
Practice Guides
Antitrust Litigation
Contributing Editor Franz Hoffet Homburger
2026
Chambers Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan
Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com
Copyright © 2026 Chambers and Partners
Contents
INTRODUCTION Contributed by Franz Hoffet, Homburger p.4
SWEDEN Law and Practice p.169 Contributed by Norburg & Scherp
AUSTRALIA Law and Practice p.8 Contributed by Gilbert + Tobin
SWITZERLAND Law and Practice p.180 Contributed by Bär & Karrer
BAHRAIN Law and Practice p.22 Contributed by Al Tamimi & Company Trends and Developments p.33 Contributed by Al Tamimi & Company
TAIWAN Law and Practice p.187 Contributed by Formosa Transnational Attorneys At Law
TURKEY Law and Practice p.198 Contributed by Özay Law Firm Trends and Developments p.208 Contributed by Özay Law Firm UK Trends and Developments p.215 Contributed by Clifford Chance LLP Contributed by Clifford Chance LLP Trends and Developments p.236 Contributed by Clifford Chance LLP USA – GEORGIA Trends and Developments p.244 Contributed by King & Spalding LLP USA Law and Practice p.221
CANADA Law and Practice p.41
Contributed by Baker McKenzie Trends and Developments p.57 Contributed by Baker McKenzie CHINA Law and Practice p.62 Contributed by Zhong Lun Trends and Developments p.76 Contributed by Zhong Lun
JAPAN Law and Practice p.81 Contributed by Nagashima Ohno & Tsunematsu MEXICO Law and Practice p.94 Contributed by Aziz & Kaye Business Law MOLDOVA Law and Practice p.106 Contributed by Efrim, Roșca and Associates Trends and Developments p.116 Contributed by Efrim Rosca & Associates Contributed by Antas da Cunha Ecija Trends and Developments p.134 Contributed by Antas da Cunha Ecija ROMANIA Law and Practice p.139 Contributed by GNP Guia Naghi & Partners PORTUGAL Law and Practice p.121
USA – ILLINOIS Trends and Developments p.250 Contributed by Willkie Farr & Gallagher LLP USA – NEW YORK Trends and Developments p.255 Contributed by Wollmuth Maher & Deutsch LLP
USA – NORTH CAROLINA Trends and Developments p.263 Contributed by Ellis & Winters LLP USA – TEXAS Trends and Developments p.269 Contributed by Norton Rose Fulbright
SOUTH KOREA Law and Practice p.153 Contributed by Shin & Kim
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INTRODUCTION
Contributed by: Franz Hoffet, Homburger
Homburger advises and represents clients in Swit - zerland and abroad on all aspects of Swiss and EU competition law, developing solution-oriented legal arguments, and representing and asserting these be - fore the authorities and courts.
Contributing Editor
Franz Hoffet is a partner in Homburg - er’s competition and regulatory teams. He has extensive experience in all areas of Swiss and European competition law, ranging from merger control to administrative and civil
antitrust litigation. He has represented a wide range of companies and trade associations in proceedings before the Swiss competition authorities, the European Commission, and in civil courts and arbitration proceedings. He also advises clients on compliance matters of Swiss and European compe - tition law. Franz is the head of the Swiss Bar Asso - ciation’s Committee on Competition Law.
Homburger Hardstrasse 201
Prime Tower 8005 Zurich Switzerland Tel: +41 43 222 1000 Email: franz.hoffet@homburger.ch Web: www.homburger.ch
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INTRODUCTION Contributed by: Franz Hoffet, Homburger
Big Tech in Focus The past year has delivered a series of antitrust deci - sions that will impact competition law for years to come. In August 2024, the US District Court for the District of Columbia ruled that Google had illegally maintained a monopoly in general search and search text advertising. The remedies phase, which occu - pied much of 2025, proved even more consequential: the Department of Justice (DOJ) sought the divesti - ture of the Chrome browser, mandatory licensing of Google’s search index, and behavioural obligations designed to prevent the recycling of search data as a barrier to entry. The US District Court for the Dis - trict of Columbia, while barring certain exclusive deals with device manufacturers and ordering the sharing of data, refused to order a divestiture of Chrome. In April 2025, Judge Leonie Brinkema delivered a second rul - ing against Google, finding in United States v Google LLC that the company holds an illegal monopoly in the markets for publisher ad servers and open-web display advertising exchanges. Digital Markets: Regulation and Litigation Converge In the European Union, 2025 marked the first use of enforcement powers under the Digital Markets Act (DMA). In March 2025, the European Commission issued its first DMA fines: Apple was penalised with EUR500 million for failing to comply with interoper - ability obligations governing its App Store, and Meta was fined EUR200 million for its “consent or pay” advertising model. These decisions represent a sig - nificant shift in the enforcement model: rather than requiring proof of harm in a specific market, the DMA imposes ex ante obligations whose breach is, in itself, a sanctionable infringement. Parallel Article 102 inves - tigations against the same companies remain active, and the interaction between the two regimes – their respective standards of proof, remedial tools, and appeal routes has become a highly debated question in EU competition law. In the United Kingdom, the Digital Markets, Compe - tition and Consumers Act 2024 equipped the Com - petition and Markets Authority (CMA) with a new “strategic market status” (SMS) designation power. By mid-2025, the CMA had opened formal investiga - tions into both Google, in relation to its dominance in
search and search advertising, and Apple, following a market investigation. Both Google and Apple ended a respective investigation by accepting commitments. AI Infrastructure, Monopolisation and Algorithms Competition authorities have identified the artificial intelligence sector as an enforcement priority – not merely because AI tools may be used for anti-com - petitive purposes, but because the infrastructure underpinning the AI economy is itself becoming highly concentrated. In September 2024, the CMA published its final report on AI foundation models, identifying significant risks arising from the market power of a small number of technology companies over cloud capacity, semiconductor supply chains, and founda - tional model development. Investigations followed in 2025, for example against Meta with respect to its policy regarding the restriction of access to WhatsApp for AI providers. The European Commission has made AI market structure a priority in its 2025–2029 enforce - ment agenda focusing on the active implementation of the EU AI Act. In the United States, the FTC v Meta Platforms trial, which commenced in April 2025, raises the questions whether established platforms (Facebook) can use acquisitions (Instagram, WhatsApp) to entrench domi - nance in adjacent markets. In November 2025, the US District Court for the District of Columbia rejected the Federal Trade Commission’s (FTC) lawsuit on the basis that Meta did not monopolise the market due to competition from TikTok and YouTube. The DOJ’s civil antitrust complaint against RealPage, filed in August 2024, addresses another concern: that the use of common pricing algorithms by competing firms can generate co-ordinated outcomes without any direct communication. The DOJ settlement with RealPage outlines the framework for the permitted use of historical price data for the training of pricing algo - rithms. Enforcement actions in Europe apply similar reasoning to algorithmic pricing in several industries, investigating alleged “Collusion by Code”. EU Merger Control: Closing Gaps Two structural questions about the reach of EU merger control have recently become prominent in the enforcement debate. The first concerns below-
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INTRODUCTION Contributed by: Franz Hoffet, Homburger
threshold transactions. The European Court of Jus - tice’s (CJEU) ruling in Towercast v Mediaset (Case C-449/21, March 2023) confirmed that a concentra - tion falling below the EU Merger Regulation’s (EUMR) notification thresholds can still be reviewed under Arti - cle 102 of the Treaty on the Functioning of the Euro - pean Union (TFEU) by a national competition authority where the acquirer is dominant. The Commission’s own attempt to extend its reach through the referral mechanism of Article 22 of the EUMR was rejected by the courts. In Illumina/GRAIL ( Illumina Inc. and Grail LLC v European Commission ; Joined Cases C‑611/22 P and C‑625/22 P), the CJEU ruled in 2024 that Article 22 referrals require the trans - action to be notifiable in the referring member state. The Commission intends to address the impact of the decision in its pending amendment of the EUMR. Another question concerns non-controlling minority shareholdings. In December 2025, the European Com - mission published its decision approving the acquisi - tion of Just Eat takeaway by Prosus N.V., subject to several commitments. One commitment concerned the divestment of Prosus’ minority interest in one of Just Eat’s main competitors, Delivery Hero. The Euro - pean Commission held that with its 27% stake Pro - sus was able to influence the competitive strategy of Delivery Hero. Further, the European Commission held that the structural link between Just Eat and Delivery Hero reduced their incentive to compete. Asia-Pacific: China Sets the Pace China’s Anti-Monopoly Law (AML), comprehensively revised in August 2022, has established the country as one of the world’s most active antitrust enforcement environments. The State Administration for Market Regulation (SAMR) has demonstrated both the will - ingness and the capacity to pursue major cases. The SAMR fined Alibaba with CNY18.2 billion and Meituan with CNY3.44 billion. Both cases focused on abuses of dominance in digital platform markets. China’s merger control has also become a critical variable in cross-border transactions. The SAMR’s review of the proposed Synopsys/Ansys combination in 2024–2025 exemplifies a pattern in which Chinese
clearance has become the critical path for transac - tions with limited direct nexus to Chinese markets. Elsewhere in the region, Japan’s Mobile Software Competition Act brought Google and Apple under monitoring obligations. In South Korea, the Korea Fair Trade Commission’s (KFTC) fine against Google for anti-competitive conduct in the Android market is proceeding through the appellate courts. In Australia, the Australian Competition and Consumer Commis - sion’s (ACCC) recommendations for mandatory plat - form codes of conduct are under active legislative consideration. Labour Markets: A New Enforcement Area Antitrust enforcement in labour markets has gained substantial momentum globally, reflecting a broader recognition that competition law applies not only to product and service markets but to the markets in which workers are employed. No-poach agreements – arrangements between competing employers not to hire or solicit each other’s staff – and wage-fixing agreements are now treated as presumptively anti- competitive in a growing number of jurisdictions. In the United States, the DOJ’s early criminal pros - ecutions of no-poach agreements ended in acquittals. In April 2025, however, a home health executive was convicted by a Federal Jury for fixing nurses’ wages. In Europe, the Netherlands Authority for Consumers and Markets (ACM) has been among the most active enforcers. The European Commission has signalled that no-poach clauses in non-M&A contexts attract the full rigour of EU competition law. Private Damages and the Increasing Role of Litigation Funding Private antitrust litigation has matured into a major feature of the landscape in its own right, particularly in Europe. The wave of follow-on damages claims arising from the European truck manufacturers’ car - tel – in which MAN, Volvo/Renault, Daimler, Iveco, and DAF were found to have operated a price-fixing cartel for 14 years – continues to generate signifi - cant jurisprudence on the passing-on defence, over - charge quantification, and limitation periods across Spain, the Netherlands, Germany, and Portugal. In
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INTRODUCTION Contributed by: Franz Hoffet, Homburger
the United Kingdom, the Merricks v Mastercard col - lective proceedings, seeking damages on behalf of approximately 46 million consumers for interchange fee overcharges, were settled in May 2025 for a pay - ment of GBP200 million by Mastercard. The importance of third-party litigation funding has been explicitly recognised by the UK’s Competition Appeals Tribunal (CAT) and has transformed the eco - nomics of private claims, enabling better-resourced claimants to pursue cases that would previously have settled at a discount. Understanding the disclosure obligations, settlement dynamics, and regulatory treatment of litigation funding has become an essen - tial component of antitrust practice across major juris - dictions.
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AUSTRALIA
Australia
Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein Gilbert + Tobin
Sydney
Tasmania
Contents 1. Introduction P.10 1.1 Current Framework for Private Antitrust Litigation p.10 1.2 Recent Developments p.11 2. Private Antitrust Claims: Basis and Procedure P.11 2.1 Statutory Basis p.11 2.2 Courts p.12 2.3 Impact of Competition Authorities p.12 2.4 Proof p.12 2.5 Pass-On Defence p.13 3. Limitation Periods and the Duration of Litigation P.13 3.1 Statute of Limitations p.13 3.2 Typical Length of Private Antitrust Litigation p.13 4. Class and Collective Actions P.14
8. Damages P.18 8.1 Damages: Assessment, Passing On and Interest p.18 9. Liability and Contribution P.19 9.1 Joint and Several Liability p.19 9.2 Contribution p.19 10. Other Remedies P.19 10.1 Injunctions p.19 10.2 Alternative Dispute Resolution p.20 11. Funding and Costs P.20 11.1 Litigation Funding p.20 11.2 Costs p.20 12. Appeals P.21 12.1 Basis of Appeal p.21 13. Looking Forward P.21 13.1 Legislative Trends and Other Developments p.21
4.1 Statutory Basis p.14 4.2 Opting In or Out p.14 4.3 Direct/Indirect Purchasers p.14 4.4 Class Certification p.14 5. Choice of Jurisdiction P.14 5.1 Rules on Jurisdiction and Applicable Law p.14 6. Disclosure/Discovery P.15 6.1 Disclosure/Discovery Procedure p.15 6.2 Legal Professional Privilege p.16 6.3 Leniency and Settlement Agreements p.16 7. Witness and Expert Opinions P.17 7.1 Witness Procedure p.17 7.2 Expert Witness Role and Procedure p.17
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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
Gilbert + Tobin is a market-leading competition, con - sumer and market regulation team. It is one of the largest in Australia, comprising ten partners, five spe - cial counsel and more than 40 lawyers. The team ad - vises on some of the most complex and high-profile matters across the Asia-Pacific region, with deep ex - pertise spanning the full spectrum of competition law – from global merger control to complex enforcement and regulatory disputes. With key offices in Sydney, Melbourne and Perth, the team adopts a multi-disci -
plinary approach, integrating law and economics with a deep understanding of clients’ businesses, indus - tries and regulators. This combination is why leading organisations rely on Gilbert + Tobin to deliver practi - cal, commercially astute advice that keeps pace with the demands of business. The team has acted in high-stakes litigation for major global and Australian clients, achieving successful outcomes in a number of landmark antitrust proceedings.
Authors
Elizabeth Avery is a senior partner and leads Gilbert + Tobin’s market- leading competition, consumer and market regulation group. Combining legal analytics, innovative problem- solving and a practical approach,
is also a leading adviser on access, pricing and economic regulation. He regularly speaks and writes on competition issues and holds leadership roles with the Law Council of Australia and the Interna - tional Bar Association.
Elizabeth has a global reputation for achieving her clients’ objectives. She advises on competition law risk in complex matters across many high-stakes situations, including merger clearances, corporate strategy, enforcement litigation and investigations. Drawing on a wealth of experience as an antitrust lawyer at a global firm in New York for many years, Elizabeth also advises on matters with multijurisdic - tional dimensions and brings a depth of comparative insights. She is regularly invited to speak interna - tionally on Australian competition law.
Jacqueline Reid is a lawyer in Gilbert + Tobin’s competition, consumer and market regulation group. She advises on ACCC investigations, merger clearance, competition law compli - ance and consumer law advice. She
has been involved in leading competition litigation matters, including complex merger and section 45 proceedings. Jacqueline has a particular interest in logistics, health, aviation, software, communications and financial services industries.
Simon Muys is a senior partner in Gilbert + Tobin’s competition, con - sumer and market regulation group and leads the Melbourne practice. He’s one of Australia’s top competi - tion lawyers, advising on complex
Owen Fischbein is a lawyer in Gilbert + Tobin’s competition, consumer and market regulation group. He advises on all aspects of competition and consumer law, including merger clearance, cartel investigations and
mergers, ACCC investigations, litigation and regula - tory issues, particularly in energy, telecommunica - tion, infrastructure and transport. He has worked on many of the most significant competition litigation matters and merger clearances of the last decade, including Tribunal and Federal Court matters. Simon
allegations of misuse of market power. Owen advises clients across all sectors, with a particular interest in energy, financial services, private equity and consumer and retail. He is currently acting for clients in two high-profile misuse of market power proceedings.
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Gilbert + Tobin Level 35 Tower 2/200 Barangaroo Ave Sydney NSW 2000 Australia Tel: +61 02 9263 4000 Web: www.gtlaw.com.au
1. Introduction 1.1 Current Framework for Private Antitrust Litigation The following article was was featured in the Chambers Antitrust Litigation 2025 Guide and is awaiting update from the firm. The Competition and Consumer Act 2010 (Cth) (CCA) is the primary Australian legislation for competition law and governs the scope of claims that may be brought for any contravention. Part IV of the CCA prohibits a range of anti-competi - tive conduct, including: • cartel conduct; • resale price maintenance; • misuse of market power; • anti-competitive mergers and acquisitions; • anti-competitive agreements; • anti-competitive exclusive dealing; and • concerted practices. There are four general sources of litigation in relation to contraventions of these provisions: • the Australian Competition and Consumer Com - mission (ACCC) is the primary enforcer of competi - tion laws, and can bring civil enforcement proceed - ings in the Federal Court of Australia; • the Commonwealth Director of Public Prosecutions (CDPP) can bring criminal proceedings for cartel conduct only; • corporations and individuals may commence pri - vate actions for damages and certain other rem -
edies (such as injunctions and declaratory relief); and • class action litigation can be brought by a lead applicant representing group members who have allegedly suffered loss or damage arising from the contravention (class actions are governed by The Federal Court of Australia Act 1976 (Cth) (Federal Court Act)). There has been a history of private antitrust cases over the years. Recently, this has focused on mis - use of market power litigation following amendments made to those provisions in 2017. Significant private antitrust cases in Australia include the following. • Queensland Wire Industries v BHP (1989) 167 CLR 177 – a foundational private misuse of mar - ket power case. The High Court held that BHP’s refusal to supply a variety of steel bar to a down - stream rival was a misuse of market power. It sets out important principles for defining markets and determining whether a corporation possesses market power. • News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 – a case relating to exclusionary provisions in contracts which established the Australian precedent that the meaning of ‘purpose’ (for the purposes of Part IV of the CCA) is subjective. • Seven Network Limited v News Limited [2009] FCAFC 166 – the case involved several competi - tion law issues, particularly around Section 45, in relation to anti-competitive agreements. The Full Court:
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(a) dismissed Seven Network’s appeal and clari - fied that it is not necessary for all parties to an agreement to share the anti-competitive purpose. It is sufficient if one party had a substantial purpose of substantially lessening competition; and (b) rejected Seven’s arguments about market definition and competitive constraints, affirming that Seven had not proven that C7 imposed a close competitive constraint on Fox Sport. related to access to their respective app stores and related terms restricting alternative in-app pay - ments (see 1.2 Recent Developments ). 1.2 Recent Developments • Epic v Google and Apple – a misuse of market power case against each of Google and Apple There has been a significant increase in private anti - trust litigation in Australia in recent years, particularly in relation to claims involving an alleged misuse of market power, where several cases have been com - menced since 2017 (following amendments that were made to the provision in late 2017). However, a num - ber of these have been resolved commercially or with - drawn. The first contested liability cases under the amended misuse of market power provision to come to judg - ment were commenced by Epic against each of Goog - le and Apple. The Federal Court heard the Epic matter in early 2025 and the Court’s decision was handed down partially in Epic’s favour in August 2025. While the judgment has not been released at the time of writing, the Court found that both Apple and Google had misused their substantial degree of market power by using technical and contractual restrictions to fore - close alternative app distribution and in-app payment options on iOS and Android since 2017. The litigation is significant for two reasons: it involves the first contested liability case to come to trial under the new misuse of market power provisions, and, due to the context in which it arose, it raises high-profile issues of access, exclusivity, and interoperability on large digital platforms. The litigation also involves follow-on class action proceedings, on behalf of app developers, which are continuing.
There are numerous other private misuse of mar - ket power cases currently before the Federal Court, including: • Engage Marine v Tasmanian Ports Corporation (a follow-on private action after the ACCC resolved its prosecution of this conduct in 2021 through consent orders); • Sinclair v Sony Interactive Entertainment ; • Australian Gypsum Industries v CSR Building Prod- ucts ; • Riverine Grazier v Google ; • Q News and Sydney Times v Google ; and • Employment Hero v SEEK . It has become clear that private litigation under the new Section 46 (with its lower threshold) has become an increasingly attractive commercial strategy for par - ties when responding to conduct engaged in by larger or substantial competitors. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis A person (including a corporation) who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a contravention of the CCA, can bring proceedings in the Federal Court seeking damages (Section 82) and a range of other remedies, including injunctions (Section 80) (excluding in relation to an anti-competitive merger or acquisition), declarations and other orders, such as an order that a contract is void (Section 87). Section 83 of the CCA further facilitates private “fol - low-on” actions by enabling findings of fact made in certain proceedings against a corporation to be used as prima facie evidence against that corporation in certain other proceedings. This is intended to assist private litigants in follow-on actions where the ACCC has successfully proved a contravention of Australia’s competition law.
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2.2 Courts The Federal Court exercises primary jurisdiction over all civil and criminal proceedings arising under the CCA in relation to alleged breaches of the CCA. The Australian Competition Tribunal (Tribunal) func - tions as a form of limited merits review in relation to certain ACCC decisions, including authorisations, merger authorisations, and, under the new and man - datory merger regime (fully effective from 1 January 2026), all merger reviews. The Tribunal comprises a presidential member, who must be a judge of the Fed - eral Court, and two non-presidential members, who possess knowledge or experience in industry, eco - nomics, commerce, law or public administration. The Tribunal can hear certain appeals from ACCC decisions, but otherwise does not determine litiga - tion matters under the CCA. Appeals from decisions of the Federal Court are heard by the Full Federal Court and by the High Court (sub - ject to special leave being granted). 2.3 Impact of Competition Authorities With the exception of the new mandatory merger notification regime, in force from 1 January 2026, the ACCC does not determine contraventions of the CCA; that function lies exclusively with the courts. Accord - ingly, ACCC decisions are not binding on any courts. Similarly, decisions of competition authorities in other jurisdictions are not binding on antitrust proceedings before Australian courts. The ACCC has an express statutory right to formally intervene as a third party in private proceedings com - menced under the CCA, with leave of the court. If the ACCC does intervene, it will be regarded as a party to the proceeding and has all the rights, duties and liabilities of a party. Usually, the ACCC will consider intervening only where a case involves one of the following: • significant public interest; • there are important or novel questions of statutory construction; or
• to make submissions about the “deleterious inter - national nature of the conduct” even if the eco - nomic impact in Australia is small. While the ACCC does not intervene in every private case, it has done so over the years and will continue doing so where it considers the public interest to be served in some way, including where a case raises questions of legal principle that the ACCC wishes to be heard on. Alternatively, the ACCC may also seek leave to appear in proceedings as an amicus curiae (“friend of the court”) or as a non-party. This occurred recently in the Epic v Apple proceedings. In that case, Apple sought a stay of the proceedings on the basis that the com - mercial agreement between it and Epic required all disputes to be determined in California courts. The ACCC made submissions concerning the public poli - cy in favour of disputes involving Australia’s competi - tion laws being heard and determined by Australian courts. The court granted the ACCC leave to intervene as a non-party and make written submissions only as to issues of public policy. In respect of merger decisions, the ACCC is the pri - mary administrative decision maker and therefore any decision is subject to challenge in the Federal Court only in respect of an error of law (ie, judicial review). A merger review decision made by the ACCC can be reviewed by the Tribunal on a limited merits review basis. While the Tribunal remakes the decision on the merits, it does so principally on the basis of the mate - rial that was before the ACCC. 2.4 Proof In civil matters, the applicant bears the burden of proof in establishing its case. If a respondent wishes to rely on any available defences or cross-claims, the respondent bears the burden of proof in establishing that defence or cross-claim. The relevant standard of proof in civil proceedings is the “balance of probabilities”, meaning the applicant will need to prove, on the balance of probabilities, that the respondent has contravened one or more competition law prohibitions and, where damages are
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sought, that the loss has been caused as a result of the contravening conduct. However, in determining whether conduct (including a merger) would be “likely” to substantially lessen com - petition in contravention of the CCA, the court must be satisfied that there is a “real commercial likelihood” or “real chance” of the conduct doing so. This is accept - ed as being a standard that is less than the balance of probabilities (ie, “more probable than not” ((see ACCC v Pacific National Pty Ltd [2020] FCAFC 77). In criminal cartel matters, the CDPP bears the burden of proof. The standard of proof in criminal cartel mat - ters is higher, at the level of “beyond a reasonable doubt”. 2.5 Pass-On Defence The question of whether there is a “passing on” or “pass-through” defence in Australia has not been determined. However, in an interlocutory judgment in Auskay Inter- national Manufacturing & Trade Pty Ltd v Qantas Air- ways Ltd (2008) 251 ALR 166, the Court commented that if a direct purchaser “had passed on the full cost of the international airfreight services to all of its cli - ents, it would seem to have suffered no loss”. This may indicate the possibility of such a defence in Aus - tralia. Indirect purchasers have legal standing to sue and will need to prove that they have suffered loss or damage by conduct in contravention of competition laws to be entitled to recover damages. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations The applicable limitation period depends on whether the competition proceedings are criminal or civil. In the case of civil claims, the limitation period will also depend on the relief sought as follows:
• in relation to civil claims seeking penalties, the claim must be brought within six years of the date on which the contravention occurred; and • in relation to civil claims seeking damages, the claim must be brought within six years of the date on which the cause of action accrued, which is the date the loss or damage is suffered, rather than when it is discovered. There is no limitation period for a proceeding seeking an injunction. While there is also no limitation period for relief sought under Section 87 of the CCA (which gives the court broad discretion to make a range of other orders), it does not provide applicants with a stand-alone cause of action and therefore must be anchored to another substantive claim for relief, such as damages or an injunction. There is no limitation period for criminal cartel cases. The only time constraint is that a criminal case can only be commenced in relation to conduct occurring post 24 July 2009, which is the date that criminal car - tel offences became law in Australia. 3.2 Typical Length of Private Antitrust Litigation The length of competition law litigation varies signifi - cantly, depending upon the circumstances. Proceed - ings at first instance can often exceed two years to complete, but could be longer, depending on the num - ber of parties, the number of witnesses, the volume of discovery, the legal and economic complexities of the case and the need for expert evidence. It is not uncommon for liability to be heard first, before a sepa - rate hearing on the question of remedies. In addition to this, time must be allowed for the delivery of judg - ment, which may itself take several months depending on the complexity of the issues, the Court’s schedule and any appeals. Australian courts have, at times, been prepared to expedite competition matters where this is seen to be necessary to protect competition or in the context of mergers.
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4. Class and Collective Actions 4.1 Statutory Basis
5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law The CCA not only applies to conduct in Australia but also to conduct outside Australia by: • bodies corporate incorporated in or “carrying on business” within Australia; • Australian citizens; or • persons ordinarily resident within Australia. The extraterritorial reach of Australia’s competition laws may be even broader than that stated above. This is by virtue of the State and Territory Competi - tion Codes, which were enacted due to constitutional limitations on Commonwealth legislative power. The Competition Codes expanded the reach of Australia’s competition laws to persons (or companies) “other - wise connected” with Australia. The phrase “or other - wise connected with” has been considered in passing judicial commentary from the Federal Court in ACCC v Yazaki Corporation [2015] FCA 1304. In that case, it was interpreted as being capable of expanding the extraterritorial reach of Australia’s competition laws, although the matter has yet to be conclusively deter - mined. Several of Australia’s consumer law prohibitions require the relevant conduct to occur “in trade or commerce,” which is defined as trade or commerce within Australia or between Australia and places out - side Australia. Once it can be shown that the CCA applies to the facts in issue, the Federal Court (and other courts) will generally only assume jurisdiction when the respond - ent or defendant is validly served with court process or a requirement for service is dispensed with by court order. Generally, it is necessary to obtain leave to serve pro - cess overseas, and to obtain that leave, the applicant (including the ACCC) needs to establish a prima facie case for the relief claimed. However, it is not neces - sary to establish this for each cause of action relied upon, only that it can be made out for any one of the causes of action ( Bray v F Hoffman - La Roche Ltd [2003] FCAFC 153).
Representative proceedings, also referred to as class actions, may be brought for damages for competition law contraventions of the CCA. The Federal Court Act sets out a detailed regime for representative proceed - ings. To bring a representative proceeding, the following criteria must be satisfied: • seven or more persons have claims against the same person; • the claims of all those persons are in respect of, or arisen out of, the same, similar or related circum - stances; and • the claims of all those persons give rise to a sub - stantial common issue of law or fact. Representative proceedings must identify the group of persons on whose behalf the claim is brought, typical - ly by specifying the shared characteristics that define group membership. A claim is typically commenced by one or two lead applicants who represent the class. 4.2 Opting In or Out The Federal Court Act provides for an “opt-out” mod - el whereby the outcome of the proceedings will bind persons who are within the defined group unless they opt out by written notice by a date fixed by the court. 4.3 Direct/Indirect Purchasers Direct and indirect purchasers have standing to bring representative proceedings for damages arising from contraventions of the competition provisions of the CCA, provided that the statutory criteria described above under the Federal Court Act are satisfied, and each group member can establish that they have suf - fered loss or damage as a result of the contravening conduct. 4.4 Class Certification There is no requirement for a class certification for proceedings to be brought as a class action.
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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Access to Documents Pre-Commencement The ACCC has broad statutory powers to compel the provision of information and documents, and conduct oral examinations of individuals, if it has reason to believe that a person is capable of providing informa - tion or documents regarding a matter that constitutes or may constitute a contravention of the CCA (Section 155, CCA). These investigatory powers cease to apply after the commencement of proceedings, from which point the ACCC must use court-ordered discovery. A private party generally has limited ability to obtain documents from the ACCC before proceedings have begun. However, where the ACCC has commenced proceedings, the respondent is entitled to request that the ACCC provide it with every document in connec - tion with the matter that tends to establish the cor - poration or other person’s case (Section 157, CCA), subject to some exceptions. For private civil actions, there is the ability under the Federal Court Rules for parties to apply to the court for preliminary discovery before commencing a substantive claim. To do this, the applicant must show that, after making reasonable enquiries, they do not have sufficient information to decide whether to commence a proceeding and they reasonably believe that they may have a right to relief (see Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193). Discovery in Civil Proceedings All parties (whether ACCC or private litigants) to civil proceedings are also able to seek standard discovery once proceedings have commenced. There is a range of discovery orders available to litigants, and the court will generally grant discovery if doing so will facilitate the just resolution of the proceeding and is necessary for the determination of issues in the proceeding. Outside of formal discovery, a party to a proceed - ing can also obtain documents from another party by issuing a notice to produce. A notice to produce can seek documents that are mentioned in pleadings or
affidavits, or require the production of documents at trial or during a hearing. Discovery in Criminal Proceedings Unlike civil matters, the prosecutor in a criminal matter has a duty of disclosure, which derives from the cen - tral tenet of the Australian criminal justice system that accused persons are entitled to know the case against them. The duty of disclosure arises from the combina - tion of the common law, statute, professional conduct rules, prosecution policies and practice directions of the courts. If a prosecutor does not comply with this obligation, it can result in a miscarriage of justice. In prosecuting criminal cartel matters, the CDPP must comply with any applicable State or Territory laws and any court directions regarding disclosure (this will depend on the State or Territory in which the proceedings are commenced) as well as profes - sional conduct rules. If not already required by those laws, the CDPP must comply with the requirements set out in the “Statement on Disclosure in Prosecu - tions Conducted by the Commonwealth” (Statement of Disclosure), which requires the CDPP to disclose any material that: • can be seen on a sensible appraisal by the pros - ecution to run counter to the prosecution’s case; • might reasonably be expected to assist the accused to advance a defence; or • might reasonably be expected to undermine the credibility or reliability of a material prosecution wit - ness. Ordinarily, the CDPP’s case will be provided to the accused by way of a “Brief of Evidence” (Brief). The timing of the provision of the Brief will depend on the jurisdiction in which the claim is first commenced, but often this will be during committal proceedings. Subpoenas Third-party evidence can be compelled through the issuance of subpoenas in both civil and criminal pro - ceedings. A subpoena can be issued in relation to the production of documents or to compel a witness to appear to give evidence (or both).
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In the Federal Court, a subpoena may be issued only with leave of the court. The party seeking leave for the issuing of a subpoena bears the onus of demonstrat - ing to the court that the subpoena has a legitimate forensic purpose in relation to the issues in the pro - ceeding. The party seeking leave is also subject to paying any reasonable costs of compliance incurred by the third party. There is no requirement for the party issuing the sub - poena to provide notice to any other party. 6.2 Legal Professional Privilege Communications subject to a claim of legal profes - sional privilege can be withheld from inspection, but their existence must be disclosed in a list of discov - ered documents, as well as a description of the docu - ment and the privilege basis claimed. Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice (advice privilege) or for use in actual or con - templated litigation or legal proceedings (litigation privilege). The privilege also extends to advice pro - vided by in-house counsel, although the Court will scrutinise the independence of the lawyer’s role and the nature and character of the advice (whether legal or commercial). Communications may also be subject to without prejudice privilege, which applies when parties have attempted to settle the matters in dispute between them. Where a document or communication has been prepared for multiple purposes, the party asserting privilege must establish that the communication had the requisite dominant purpose by adducing focused and specific evidence to establish that the dominant purpose for which the document was created, or the communication was made, was for a legal purpose. Courts will consider a variety of evidence to assess the dominant purpose for which a document or commu - nication was made, including public statements and/ or media releases made by a company. An unsup -
ported assertion is insufficient to establish a dominant purpose. 6.3 Leniency and Settlement Agreements In Australia, there is no general right that enables a successful or unsuccessful applicant for immunity or leniency to withhold evidence disclosed by it to the ACCC (or CDPP) when obtaining leniency in any sub - sequent court proceedings. Whether an applicant may be able to resist an applica - tion for access to or discovery of such documents will depend on the circumstances and the evidence being sought. In the past, the ACCC has successfully resist - ed an application for access to admissions made by a competitor in securing leniency from the ACCC on the grounds that the documents related purely to credit and are not discoverable ( Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444, upheld on appeal: see Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission [2007] FCAFC 147). A leni - ency applicant may be able to resist an application on the same grounds. Further, in 2009, provisions were introduced in the CCA that enable the ACCC to withhold producing to the court or another party to a proceeding “protected cartel information”, being information provided to the ACCC in confidence and relating to a possible contravention of the civil or criminal cartel provisions. The ACCC may, but cannot be compelled to, produce protected cartel information to a party to proceedings or a court or Tribunal (except with leave in the latter case). However, in deciding whether to disclose pro - tected cartel information, or to grant leave, the ACCC or the court/Tribunal (as applicable) must have regard to specific statutory factors (and not any other mat - ters). Similarly, the ACCC may, but cannot be required to, disclose protected cartel information to another party to a proceeding, and if it does, it must consider specific statutory factors (and not any other matters). The ACCC may seek to resist disclosing leniency doc - uments sought by a private litigant under subpoena based on the common law protection known as public interest immunity.
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A private litigant could theoretically access leniency documents from the ACCC under freedom of informa - tion (FOI) legislation. However, the ACCC has almost invariably resisted FOI production, relying on one or more of the numerous exemptions in sections 33 to 47 of the FOI Act, and the Courts have supported decisions to refuse access (eg, Telstra Australia Ltd v Australian Securities and Investments Commission [2000] AATA 71). Amongst others, this includes an exemption where access to documents might reason - ably be expected to affect the enforcement or proper administration of the law. 7. Witness and Expert Opinions 7.1 Witness Procedure Proceedings heard in the Federal Court are subject to the: • Evidence Act 1995 (Cth) (Evidence Act), which prescribes the rules governing admissible forms of evidence, including evidence given by witnesses; and • The Federal Court Act and Federal Court Rules, supplemented by the Court’s Practice Notes, which prescribe various procedural rules. The primary way that witness evidence is adduced is through evidence in chief. The form of evidence in chief is set by the court and turns on the nature of the issues. In competition proceedings it is ordinarily given by affidavit rather than by oral narration in court. Affidavits are used because they promote efficient case management and reduce hearing time and cost, and the Federal Court rules and Practice Notes pre - scribe their form and content. Unless the court orders otherwise, an affidavit becomes evidence when it is read or taken as read, and remains subject to objec - tions as to admissibility. Evidence in chief, whether oral or by affidavit, must be relevant and not caught by an exclusionary rule to be admissible. A party is free to choose its witnesses, but it must call those necessary to prove the facts it has pleaded. If a party, without explanation, fails to give evidence, to call a witness, or to tender documents, the court may
draw an inference that the missing evidence would not have assisted that party. It does not permit an inference that the absent material would have dam - aged the case. Any witness called by a party may be cross‑examined by the opposing party. Cross‑examination is oral and usually in person, although the court may permit it by video link where appropriate. It may address both fact and credibility, but questioning must be confined to admissible matters. Cross‑examination is not compul - sory and is often dispensed with where a witness is simply required to prove uncontroversial documents. The key forensic question is whether a party intends to contradict or challenge the accuracy of the evidence. A party that wishes to lead contrary evidence or later submit that a witness is mistaken or unreliable must first put the substance of that challenge to the witness in cross‑examination. If a witness is unwilling to cooperate, a party may compel evidence by subpoena, which can require attendance in court to give oral testimony, production of documents, or both, though production subpoenas are more common for strategic reasons. Outside a subpoena, a witness cannot be forced to confer with lawyers. Once issued, a subpoena must be served; non‑compliance is contempt and can lead to sanc - tions, including a warrant for arrest. The issuing party must provide conduct money and meet the recipient’s reasonable costs of compliance. A person subpoe - naed to give evidence may, with the court’s leave or direction, give evidence in chief by affidavit rather than orally. If a compelled witness proves adverse, the call - ing party can seek to have the witness declared hos - tile so that cross‑examination is permitted. 7.2 Expert Witness Role and Procedure The courts accept expert evidence and it is routinely relied upon in competition cases in Australia. Experts must act independently of the parties. Any expert wit - ness must read and agree to be bound by the Harmo - nised Expert Witness Code of Conduct prior to giving evidence. Admissibility of expert evidence turns on s 79 of the Evidence Act and the report must identify the field of specialised knowledge, the factual assump - tions, the reasoning path and the literature or data relied upon.
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