The Effects of Public Enforcement of Competition Law in Arbitration
Abstract
Issues related to competition law are traditionally resolved through public enforcement in administrative authorities. This article discusses the fairly recent development of competition law issues being raised in private arbitration proceedings. More specifically, the article aims to outline the effects of public enforcement of competition law in arbitration. The article also discusses if arbitrators who are independent by nature are required to take into consideration decisions and statements given by the competition authorities. The applicability of competition law rules in arbitration proceedings was confirmed by the Court of Justice of the European Union in the seminal Eco Swiss case. The Court provided that national courts are required to take account of EU competition rules when considering annulment of an arbitral award, thus resulting in an indirect obligation for arbitrators to take the competition rules into consideration as well. Additionally, it can be concluded that arbitrators are required to consider decisions given by the competition authorities as part of the evidence of the matter before the arbitral tribunal. As the private enforcement of competition law continues to have more significance in competition law enforcement, it is presumable that also the use of arbitration in resolving competition law issues will only increase in the future.
