The facts of the Apple case [2] can be summarised very briefly: Apple Sales International, a company established under Irish law, on 20 December 2005 entered into a contract with eBizcuss recognising the latter as an authorised reseller of Apple products. eBizcuss undertook to semi-exclusively distribute its contractual partner's products. The jurisdiction clause in their contract read: “This Agreement and the corresponding relationship between the parties shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties shall submit to the jurisdiction of the courts of the Republic of Ireland. Apple reserves the right to institute proceedings against Reseller in the courts having jurisdiction in the place where Reseller has its seat or in any jurisdiction where a harm to Apple is occurring.” Later-on, in April 2012, eBizcuss sued Apple Sales International, its mother company Apple Inc. and Apple Retail France in Paris for damages due to acts of unfair competition and abuse of a dominant position. Apple Sales International raised the objection of lack of jurisdiction based on the derogatory effect of the jurisdiction clause. The Tribunal de commerce de Paris and the Cour d'Appel de Paris upheld this. The Cour de Cassation on further appeal squashed it [3]. After a referral back to the Cour d'appel de Versailles the appeal of eBizcuss was allowed and the case was returned to the Tribunal de commerce de Paris. Against this the three Apple companies appealed in turn [4]. The Cour de cassation, seised for a second time, referred questions for a preliminary ruling to the CJEU which touch upon the relation between Article 23 Brussels I Regulation and Article 102 TFEU [5]. The CJEU decided after hearing A-G Wahl [6]. It cited at length from its preceding judgment in CDC Hydrogen Peroxide [7]. In the result, the CJEU extended CDC Hydrogen Peroxide to Article 102 TFEU [8]. Whilst recognising the differences between Article 101 TFEU and Article 102 TFEU [9], it regarded taking account of a jurisdiction clause covering “the corresponding relationship”, as not surprising one of the parties in the context of claims based on Article 102 TFEU [10]. Furthermore, the CJEU denied any necessity of a previous finding of a an infringement of competition law by a national or European authority [11]. It based its finding in this regard on the direct effect of Articles 101, 102 TFEU in particular [12]. A different result was also held to undermine the objective of foressebability which underpins Article 23 Brussels I Regulation [13].

Private enforcement has become the dish of the day in modern competition law, with the EU taking the lead. This prompts severe and fundamental consequences. In particular, now the civil [14] courts are in charge of many relevant court cases. The procedures before them are subject to civil procedural law. Add to this a cross-border dimension (as it so often occurs in competition cases), and one will readily enter into the realm of the Brussels Ibis Regulation. International jurisdiction thus has gained imminent prominence. Whereas in the past special jurisdiction by virtue of Articles 7, pt. 2 Brussels Ibis Regulation and 5, pt. 3 Brussels I Regulation/Lugano Convention 2007 (torts) or Articles 8, pt. 1 Brussels Ibis Regulation and 6, pt. 1 Brussels I Regulation/Lugano Convention 2007 (multiple defendants) has been the protagonist and has absorbed the focus of attention [15], nowadays Articles 25 Brussels Ibis Regulation and 23 Lugano Convention 2007 on choice of court agreements gain ever more importance [16]. This cannot be surprising. Choice of court agreements, or in other terminology: jurisdiction clauses, simply are the primary device for contractually regulating jurisdictional risks [17] and the very option legal advisors and internal legal departments turn to. Insofar as they reach and as they are valid, they allow parties to execute risk and litigation management [18]. General jurisdiction and all kinds of special jurisdiction are at the parties' disposition and must give way to a valid jurisdiction clause wherever the latter is operable [19]. A valid jurisdiction clause reduces and severely curtails the prospective plaintiff's opportunities for forum shopping (as all kind of special jurisdictions permit it [20]) [21]. The prospective defendant is very much interested in concentrating and monopolizing a possible lawsuit in a forum that he deems favourable to his stance or in a location that makes litigation more cumbersome to the claimant. Switching over to private enforcement as one means of enforcement does not only influence the parties' respective tactics after proceedings have commenced [22] but at an even earlier stage their strategies, their litigation planning and their risk management.

In competition law cases, two different aspects have to be distinguished: first the scope and second the validity of jurisdiction clauses. In CDC Hydrogen Peroxide [23], the CJEU laid the fundament. Now the second in line, Apple, addresses some consequential issues and fills some gaps left by CDC Hydrogen Peroxide [24]. A “bloc de jurisprudence” [25] is certainly building. Yet it is a safe guess that this will not be the last time that the CJEU will have to address consequential issues. Apple had to be decided still under the aegis of Article 23 Brussels I Regulation. The advent of Article 25 Brussels Ibis Regulation has brought about quite some changes in the European law as to jurisdiction clauses. These changes need consideration once cases fall within the temporal scope [26] of Article 25 Brussels Ibis Regulation [27].

The scope and reach of a jurisdiction clause is a matter of interpretation of that very jurisdiction clause. Interpretation of a given jurisdiction clause has to take place before the validity of that clause can be assessed for only interpretation asserts the proper content which in the second step is subjected to scrutiny [28]. If by way of interpretation a jurisdiction clause has to be understood so restrictively as not to cover competition law claims, it would be futile and inefficient to indulge into a check of its validity which in turn would have as a precondition that the clause would cover competition law claims [29]. Yet even before reaching interpretation, consensus might need to be checked [30]. It would be futile to enquire about the content of a clause where the clause is not agreed upon at all. This results in a three-tier agenda: first, consensus; second, interpretation; third, validity.

The respective width of a given jurisdiction clause and whether it also covers competition law claims, is a matter of interpretation of the jurisdiction agreement to be answered in accordance with the law governing the jurisdiction agreement [31], at least insofar as an autonomous interpretation is not feasible [32] and as no case law by the ECJ provides guidelines [33]. The standards established by EU law indubitably are the starting point for hierarchical reasons. Yet interpretation of contract clauses as such is not a task for the CJEU, but for the national judge. To expressly and unequivocally name and include competition law cases certainly is the most commendable way of drafting jurisdiction clauses for it provides the relatively optimal clarity; on the other hand, such express inclusion is not a necessary requirement [34]. Generally, those who are in charge of drafting contracts are well advised to avoid the possible pitfalls and surprises of contract interpretation [35]. They should make their desires as express as possible. A presumption in favour of a rational preference for one-stop adjudication might be a starting point [36], but cannot be more than just that: a starting point the more so since such favour might be unilateral on the proposing party's side. Anglo-Saxon contracting practice might be cumbersome and cost intensive but it at least reflects this approach. However, even (or rather: in particular) English language contracts more often than not raise the question about the meaning of certain prepositions. The richness of linguistic variations can be breathtaking [37] and might rapidly lead back into the dreaded realm of contract interpretation. A rough and ready answer fitting all occasions and all clauses is not at hand [38]. Clauses covering all claims in connection with the contract, are sufficient to comprise competition law claims inter partes [39], whereas clauses covering only claims arising out of the contract do not reach that aim [40]. Insofar the distinction is between bilateral party relations and does not distinguish between different claims under competition law [41]. A minore ad maius, general and generic jurisdiction clauses without further specifications are not precise enough [42]. On the other hand, the said delimitation evidences a compromise [43]: Competition law claims between private parties are generally open to party autonomy and jurisdiction if the latter are either precise or wide enough and carry the required degree of certainty [44]. Competition law claims are for suppliers and customers who fell victims to the cartel, closely interwoven with their respective contractual relations that have been manipulated by the cartelists [45]. Insofar, suppliers or customers cannot invoke to be surprised because allegedly the influence of a possible cartel was to remote to be contemplated [46], the more where compliance clauses (effectively submitting the respective supplier or customer under guidelines issued by the cartelant) have been negotiated [47].

EU competition law contains two different rules addressing variedly different scenarios respectively, in Article 101 TFEU and Article 102 TFEU. In Apple, the CJEU is not unambiguously clear on whether under the auspices of Article 25 Brussels Ibis Regulation it distinguishes between these scenarios [48] or not [49]. Howsoever, the CJEU in principle extends a line of argument developed for the purposes of Article 101 TFEU to Article 102 TFEU (paras. 26-28) [50]. This concords with the general mode of developing and organically progressing case law by a court that must have regard to the questions referred to it and the underlying cases. Prévisibilité and legal certainty might suffer a trifle until this way is perfected [51]. Yet the way is consequent and consistent. The questions referred to the CJEU in Apple concerned Article 102 TFEU, and thus they consequently gained an answer having regard to Article 102 TFEU. Apple proceeds and progresses from the ground laid by CDC Hydrogen Peroxide. Apple is not intended to extinguish any distinctions between Article 101 TFEU and Article 102 TFEU [52]. Both rules happen to co-exist very well [53] since they fight different phenomena. In cases covered by Article 102 TFEU there are neither two contracts nor the necessity for an intermediating link. Abuse of an own dominant market position hits the affected contracts with customers or suppliers respectively more directly (see para. 28). Abuse is less clandestine [54], more discernible and is not dependent on any additional information about a secret agreement detrimental to customers or suppliers. It materializes more directly and is thus closer related to the contractual bargain [55]. The potential paradox is that the surprise effect might be reduced as a result of the enhanced discernibility [56]. Better visibility highlights the signal if a jurisdiction clause also covers competition law claims. The supplier or customer will feel his opponent's market and bargaining power already in the substantive part of their bargain since he will have to accept unfavourable contract terms. There is no reason why that market and bargaining power will affect the choice of court agreement, too. Consequentially, it can even be argued that forcing an unfavourable choice of court agreement on a supplier or customer could be per se an abuse of a dominant market position under Article 102 TFEU [57]. It does not amount to a hindrance that a jurisdiction agreement might be concluded before competition law claims arise and, a fortiori, before creditors could possibly know about their existence [58].

On the other hand, every jurisdiction agreement covering competition law claims is effective only inter partes, i.e. between the parties to exactly this agreement. These parties cannot contractually bind third parties to their bargain (only successors to either party may be bound). Acta inter alios tertiis non nocent. This holds true also for the contractual bargain of a jurisdiction agreement, despite its primarily procedural effects. Accordingly, jurisdiction agreements between cartelists to their customers' or suppliers' detriment which would force the customers or suppliers to sue solely in the forum prorogatum must not be upheld [59]. Furthermore, a jurisdiction clause in a contract between a party abusing its dominant position and its supplier or customer, does not extend to the detriment of indirect victims [60].

Neither claims based on Article 102 TFEU nor claims based on Article 101 TFEU require that the Commission must have asserted a violation of Article 102 TFEU or Article 101 TFEU previously [61]. Private enforcement has equal rank to public enforcement [62]. To make a victim's options or a private attorney-general's option dependent on the discretion of public watchdogs would be insensible and contrary to the very idea of private enforcement [63]. On the other hand, a previous verdict of the respective practice by the Commission is by no means detrimental to the claimant's case. On the contrary, the private claimant can make use of it to his own avail [64]. A fortiori, the jurisdiction clause covers follow on-suits if it covers competition law claims at all. It does not bear any relevance for the outcome whether the case is a stand alone-action or a follow on-law action [65]. On the contrary, it would be highly paradoxical if the claimant could not avail himself of the results reached by the Commission without paying a price. The Commission has by far better instruments and opportunities to gather the relevant facts than almost any private claimant does.

Drafting jurisdiction clauses has to consider two steps: The first one is coverage. The second one is validity under the auspices of Article 25 Brussels Ibis Regulation. The wording of the clause to be proposed must be either precise or wide enough to cover competition law claims. There is no automatism [66]. Drafters are in an unenviable and rather difficult position [67]. They must decide whether they are bold enough to name competition law claims explicitly in all possible variations, best even expressly listing both Article 101 and Article 102 FTEU. This would certainly be precise enough. Yet it could alert the other contracting party about what is intended. “Watch out, you are getting to be framed”, could be the catch phrase for such wording, highlighted in bold neon letters. The alternative would be to opt for a wide wording not expressly mentioning competition law claims. This could run into trouble with, and might be challenged with regard to, the precondition that the jurisdiction clause “to settle any disputes which have arisen or which may arise in connection with a particular legal relationship” as established by Article 25 (1) 1^st sentence, first phrase Brussels Ibis Regulation.

Insofar as a jurisdiction clause generally covers competition law cases, the consecutive question arises as to whether it is valid. In competition law cases there is no objective exclusive jurisdiction trumping jurisdiction clauses a priori. Article 24 Brussels Ibis Regulation does not address competition law cases. There simply is no “natural” forum for an exclusive concentration of suits stemming from the same cartel, and any focus to an abuse of a dominant position could possibly lead only to the market concerned or to the abusing party's domicile. Consequently, there is no paragraph in Article 25 Brussels Ibis Regulation specifically inhibiting jurisdiction clauses in competition law cases. Conversely, competition law cases are not specifically mentioned anywhere in Article 25 Brussels Ibis Regulation, particularly not in Article 25 (4) Brussels Ibis Regulation. Article 25 Brussels Ibis Regulation dos not contain a counterpart to Article 8 (4) Rome II Regulation, the latter ruling out parties' choice of law in competition law cases [68].

Jurisdiction clauses in competition law cases under the Brussels Ibis Regulation could face a very serious challenge from other quarters, though: Article 25 (1) 1^st sentence 2nd phrase Brussels Ibis Regulation refers to the lex fori prorogati as the law governing the substantive validity of jurisdiction clauses [69]. This reference has to be understood as to comprise the private international law of the lex fori prorogati [70]. It is a novelty compared to Article 23 Brussels I Regulation, striving for coherence with Article 5 (1) 2^nd sentence Hague Choice of Court Clauses Agreement. This opens the realm of jurisdiction clauses to substantive law. Article 25 (1) 1^st sentence 2^nd phrase and Recital (20) Brussels Ibis Regulation cede with a regulation autonomously by EU law and refer to domestic laws [71]. This complicates case handling [72] and leads to a iuxtaposition of different approaches for different issues [73]. EU competition law forms part of the law of each Member State. Hence, it is a possible target of the reference established in Article 25 (1) 1^st sentence 2^nd phrase Brussels Ibis Regulation.

Article 25 Brussels Ibis Regulation governs only jurisdiction clauses prorogation a forum in a Member State. In the European area of freedom, security and justice (Art. 67 (1) TFEU), the chosen courts of one Member State are per se deemed equally qualified to deal with competition law claims as the courts of any competent court in another Member State [74]. Each Member State is obliged to enforce EU competition law. Mutual trust demands the other Member States to believe in that State complying with this obligation. Hence, the duty to enforce EU competition law effectively does not per se permit to render each kind of derogation invalid [75]. But for leeways induced by EU law itself, Article 6 (3) Rome II Regulations safeguards (as far as it goes) that in a European context mandatory rules cannot be derogated from by agreeing on a court having jurisdiction that would be prone to apply lesser standards [76].

Yet jurisdiction clauses are but one contractual device. Arbitration agreements are the first and most prominent alternative. Arbitration agreements do not fall within the substantive scope of the Brussels Ibis Regulation, pursuant to Article 1 (2) lit. d) Brussels Ibis Regulation and in accordance with Recital (12) Brussels Ibis Regulation. Arbitration awards are recognized and enforced under the New York Convention as Article 73 (2) Brussels Ibis Regulation underlines another time. Yet this does not decide conclusively the issue whether arbitration agreements are admissible in competition cases [77]. The CJEU had not to address exactly this issue. Nonetheless, it will certainly find its way to Luxemburg in the future. To which extent arbitration agreements are compatible with the effet utile of Articles 101 and 102 TFEU and of any ensuing Regulations and Directives will not escape attention [78]. Ingmar [79] should be taken as a clear warning to all who are too hopeful and who tend to rely too much on contractual risk management: The CJEU is well prepared to defend the effet utile of EU law with all available means (to adopt a familiar political phrase: whatever it takes) against any attempts to evade and to circumvent it [80]. Arbitration agreements are by no means sacrosanct and immune [81]. To opt for an arbitral tribunal sitting in a Third State threatens and endangers EU competition law to be disregarded [82]. On the other hand, Recital (48) Directive 2014/104/EU heralds and welcomes arbitration in competition law matters as a true alternative to litigation. However, the usefulness of arbitration will readily find its limits in this field. Member State courts are still entitled to regard arbitral awards disregarding, or not complying with, EU competition law as contrary to their national public policy. The public policy of either Member State includes EU competition law, by virtue of EU law after Eco Swiss. Such arbitral awards are not recognized pursuant to Article V (2) lit. b New York Convention. If they are rendered in the respective forum state, they are prone to be set aside [83].