Chapter 12: The interaction between arbitration and public enforcement: clash or harmony?
This chapter deals with the interaction between arbitration as a means of private enforcement of EU competition law on the one hand and the phenomenon of public enforcement on the other. It will be demonstrated that although there is no established practice, nor any firm regulatory guidance concerning co-operation between and co-ordination of pending arbitration proceedings and competition law investigations by the European Commission (or by the national competition authorities), sensible guidance can be provided on a case-by-case basis taking account of the supranational imperative governing relations under EU law, read together with the arbitrator’s duty to render an enforceable award and the principle of party autonomy that is inherent to arbitration more generally. The interaction between arbitration and public enforcement is an important subject that is often overlooked, and it has equally received fairly little attention in specialist literature on EU competition arbitration to date. This subject goes to the very heart of the dichotomous nature of: (i) arbitration as a private dispute resolution mechanism on the one hand; and (ii) the public-administrative mandate and regulatory functions performed by the European Commission and competent National Competition Authorities (NCAs) in the public enforcement of the EU competition law rules on the other.
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