Arbitration and EU Competition Law

Introduction

The relation between arbitration and competition law has been the topic of a dynamic debate for many years, amongst practitioners and academics. This let to many interesting jurisprudential developments. One way to address this debate is to look at it from different opinions. Firstly, before a court, the impact of competition law on arbitration can be brought up in two situations, at the moment of the assessment of the validity of an arbitration agreement and in setting aside or enforcement proceedings. Secondly, from the point of view of an arbitrator, for him competition law raises a variety of delicate issues.

In fact, an unbiased analysis demonstrates that arbitration does not prevent an efficient competition enforcement, meanwhile, it shows that the need to comply with the requests of competition enforcement does not present unreasonable strains on the general principles of arbitration.

Given the potential significance of competition law in a wide variety of disputes, if antitrust disputes were not arbitrable, there would be a huge ambit for tactical operations aimed at interposing with the suitable outcome of the arbitration agreement.

Arbitration is acknowledged by states as an alternative dispute resolution mechanism to litigation. It was created through the private autonomy of the parties, who remove the jurisdiction of national courts for their disputes by their arbitration agreement. The arbitrators are appealed to decide a specific dispute that has been filed to them by the parties and they resolve the dispute by applying the law chosen by the parties.

To assign that law, they must, just like national courts, have access to private international law mechanisms. The arbitration agreement is an enforceable contract that binds the parties and prohibits the courts’ jurisdiction to decide on the dispute. The arbitral award generates the same principal effects like courts’ decisions. In some legal systems, courts may not even re-examine the arbitral awards in their substance, and only have the possibility to set them aside or refuse their recognition or enforcement, if certain conditions are met, which are rather exceptional, especially in the case of foreign arbitral awards.

Currently, a lot of business disputes are submitted to arbitration, which is more preferable than national courts due to the fact that arbitration is internationally recognized for its independence, neutrality, impartiality, flexibility confidentiality, technical expertise, time and cost efficiency.

EU Competition Law issues regarding Arbitration

The main issue about the implementation of EU competition law by the arbitrators is an old one. It was in the centre of attention from both the side of EU and competition lawyers and from the side of arbitration specialists. The first approach of both has been somewhat conflictual.

Arbitration was seen somehow sceptically by antitrust compliance environment in the early stages of EU competition law enforcement. The distrust, not to say animosity, was due to the concern that arbitration could be used by firms as a risky forum to violate antitrust laws, without having the risk of the Commission, the national competition authorities or the state courts, to detect it.

The specific features of confidentiality, neutrality and the purpose of arbitration were seen as especially troubling. This probability was associated with anecdotal reports that international arbitrators in non-EU countries, which were significant arbitration centres, did not give proper regard to the competition laws of the European Union.