National courts in the EU have recently given contradicting decisions on the scope of application of arbitration clauses in antitrust damages cases. Some courts have ruled that antitrust damages claims should be resolved in arbitration if the claims are connected to an agreement between the claimant and the defendant. Other courts have found that arbitration clauses did not cover antitrust damages because the claims were not foreseeable and were based on tort, not breach of contract. We argue that under the established interpretation of the scope of application of arbitration clauses, antitrust damages cases would likely be caught by typical arbitration clauses. However, we also argue that at least in certain types of cases that is likely to lead to fragmented and ineffective proceedings because arbitration as a method of dispute resolution is not well-suited to all types of antitrust damages claims.
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