To arbitrate or not to arbitrate... Competition law disputes

Abstract

During a long time, the arbitrability of competition law has been the center of debates in the European as well as in the American doctrine. The non-supporters based their view on the confidential character of arbitration, which was to them inappropriate for resolving the competition law related issues, as it was considered that competition law protects the public interest and that few business behaviors can affect the interest of a lot of people. Even though the arbitrability of disputes related to competition is not anymore an issue, arbitration lacks some of the facilities granted by the European legislator or national legislators to national judges or to national competition authorities. Hence, since there was no legal framework or regulation for the arbitrators, there would not have any possibility to consult the Commission in connection with the correct application of the EU rules. Even if legal regulations do not mention expressly the possibility of the consultation of the Commission by the arbitrators, this option already exists, of course, subject to prior consultation of the parties.