CL-2024-000678 - [2025] EWHC 2531 (Comm)

The prices actually charged by AML to AMMENA reflected the DNPs in Germany, as charged by AML to German retail dealers, to which it sells directly.

AMMENA’s case was that Article 4(A)(1) required prices under that provision to reflect (in the sense of being “not materially higher than” in limb (a), and “in line with” in limb (b)) the ITPs charged to captive distributors. AMMENA focussed principally on the ITPs charged by AML to AMLNA; but, at least before me, it was open in principle to pricing that reflected the ITPs charged by AML to AML China (via CATC).

The Tribunal recorded in the Award that the commercial purpose of Article 4(A)(1) was common ground:

“It is to ensure that there is a roughly level playing field between different territories. It requires a like-for-like comparison at a reasonably high level of generality. The price must comply with both sub-paragraphs (a) and (b). As AML say, the provision is analogous to a "most favoured nation" clause.” (Footnote: ¹)

AMMENA said that, because it is a distributor, not a retail dealer, the comparator prices must be prices charged to distributors. In circumstances where there are no commercially independent distributors, AMMENA said that it follows that the comparator prices therefore must be the ITPs charged by AML to its captive distributors.

The Tribunal rejected AMMENA’s case and accepted AML’s argument that the comparator prices must be prices fixed in the context of a commercial arm’s length relationship. The Tribunal considered that the ITPs charged to AMLNA and AML China cannot be used as comparator prices, because they are not fixed in the context of a commercial arm’s length relationship. By contrast, the DNPs charged by AML to retail dealers, are appropriate to use as comparator prices and, on this basis, the Tribunal concluded that it was acceptable to use the DNPs charged by AML to retail dealers in Germany.