Serle Court

Controversial issues can arise where competition law is applied to business activities relating to intellectual property rights (IPRs). This Practice Note charts some of the emerging themes in relation to the interaction between competition law and IPRs. This Practice Note also outlines potential competition issues relating to business practices such as standard setting and patent pools, ‘pay for delay’ deals and licensing of IPRs.

This Practice Note has been archived and is not maintained. Revised Horizontal Guidelines were published in the Official Journal on 21 July 2023. This Practice Note was written with the previous Horizontal Guidelines in mind.

This Practice Note reviews the application of EU law to the actions of the state when it intervenes in markets through undertakings it controls and/or owns or which it places in a privileged position. The Practice Note provides an overview of the duty of loyalty under Article 106(1) TFEU and Article 4(3) TEU and details circumstances when the state may be acting anti-competitively. There is also detail on how the derogation for ‘services of general economic interest’ is applied.

This Practice Note considers the substantive (applicable) laws an arbitral tribunal seated in England and Wales or Northern Ireland should apply when making its substantive award in a dispute and the rules arbitrators should follow to determine those laws where the parties have made no express choice. This topic may be referred to as: the applicable law of the arbitration or the governing law of the contract in international arbitration proceedings.

There have been a number of EU competition investigations around tying and bundling in traditional ‘bricks and mortar’ cases but also in newer technology markets which are challenging traditional competition analysis. This Practice Note considers the different types of tying and bundling and the approach of the European Commission under Article 102 TFEU. The challenges of applying the existing approaches in tying cases to ‘new economy’ products is explored, including complex issues raised by the Microsoft media player cases and more recent complaints against Google.