Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Friday, November 11, 2011

Arbitration and EU Competition Law: Do Not Tilt the Balance

Posted by D. Daniel Sokol

Arbitration and EU Competition Law:
Do Not Tilt the Balance

By Dr Assimakis Komninos, White & Case (Brussels)

Wednesday 23 November 2011 from 6-8pm
at UCL Faculty of Laws' Bloomsbury Campus

Organised by UCL's Centre for Law, Economics & Society

About this talk

Arbitration is a generally accepted method for the resolution of international business disputes and, for antitrust enforcement purposes, it represents another forum for the application of the competition rules. There is nowadays no doubt that EU competition law disputes can be submitted to arbitration (they are arbitrable), notwithstanding their public policy (ordre public) nature. After modernisation, exactly like courts, arbitrators have full competence to apply the whole of Article 101 TFEU, including its third paragraph. If the Commission were to issue in the future a notice or another informal instrument on arbitration, for clarity it could explicitly state the above proposition.

The neglect of arbitration in Regulation 1/2003 and in the accompanying ‘Modernisation Package’ is not in itself problematic; however, the European Commission should always remain open to cooperate with arbitration tribunals either in an informal or a more formal way. In the future, the Commission could consider publishing a Notice or some Guidelines on cooperation with arbitral tribunals. Such a Notice could provide for a more structured dialogue between arbitrators and the Commission, while increasing the transparency of the whole system of cooperation. It would also raise the EU competition law awareness of arbitrators and parties, but should strive not to encroach on the fundamental principles of flexibility, confidentiality and privity of the arbitral process.

Arbitration is not an organ of the Member States and therefore Articles 4(3) TEU and 16 Regulation 1/2003 are not directly binding on it. However, arbitral awards can be reviewed by EU-based State courts on public policy (ordre public) grounds, and this constitutes the ultimate and most efficient safeguard for the respectful application of the EU competition rules by arbitrators. To the extent an arbitral award may be reviewed and set aside on such grounds, the arbitrators should exercise caution when applying EU competition law and should even proceed to apply it of their own motion (ex officio). In the extreme case where an arbitral tribunal is an internal structure of a cartel and its function is to ensure compliance and resolve ‘disputes’ within the cartel, the arbitration clause itself would be illegal and the ‘arbitrators’ would be liable to fines under Article 101 TFEU.

This event is accredited with 2 CPD hours by the Solicitors Regulation Authority, Bar Standard Board (Pending).

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