Competition Law Damages Actions in Respect of Forex Rate Fixing Cartels: Where the Passing-on Defence Appears to Reach its Limits

Stirling, Grant

Abstract

This article discusses the recent decision of the Court of Appeal of England and Wales in Allianz Global Investors GmbH v Barclays Bank Plc. Overturning a decision of the High Court, the Court of Appeal held that losses incurred by investment funds as a result of the fixing of foreign exchange rates by a group of banks were not, from a legal perspective, deemed to be "passed-on" to investors in those funds upon investors redeeming their holdings. While it is argued that the decision of the Court of Appeal is fundamentally correct, it is submitted that the Court was wrong to downplay the significance of the rule against "reflective loss" in coming to its decision. It is then noted that the decision is significant in terms of drawing a firm distinction between the situation of a price being passed on down a supply chain to purchasers - and the scenario of an illegal overcharge causing loss to the value of a company or other legal entity, potentially diminishing the value of the holdings of investors in that entity.

Citation

Stirling, G. (2022). Competition Law Damages Actions in Respect of Forex Rate Fixing Cartels: Where the Passing-on Defence Appears to Reach its Limits. Global Competition Litigation Review, 15(3), 97-104

• Journal Article Type: Article
• Acceptance Date: Jul 13, 2022
• Online Publication Date: Sep 1, 2022
• Publication Date: 2022-09
• Deposit Date: Mar 7, 2023
• Journal: Global Competition Litigation Review
• Print ISSN: 1756-6002
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 15
• Issue: 3
• Pages: 97-104
• Series ISSN: 1756-6002
• Keywords: Cartels; EU Law; Foreign exchange; passing on; Private enforcement