The Arbitrability of Articles 101 and 102 TFEU

Abstract

Whereas the arbitral tribunal is a non-national institution and has no lex fori in the conventional sense, legal practice has extended the applicability of Articles 101 and 102 TFEU not only to private actions in front of the national court but also in the context of arbitration. Private enforcement of the competition rules encounters various substantial and procedural challenges. Even though, prima facie, an increasing number of arbitral cases discuss the application of the two TFEU articles, limitations to the arbitrability in the competition law field remain in place. The present chapter analyses the practical challenges to application of the EU competition law rules to arbitration, as well as the advantages ensued by the arbitrability of such rules. Ultimately, it argues for the necessity of uniform application of European Law legislation by arbitral tribunals.