Edited by Mel Marquis and Roberto Cisotta
Chapter 11: Some considerations on arbitrability of competition law disputes and powers and duties of arbitrators in applying EU competition law
The problem of defining the limits to the application of national procedural rules lies at the root of both the strands of case law of the Court of Justice of the EU regarding, respectively, EU competition law enforcement through arbitration and antitrust damages actions. Therefore, these two lines of private enforcement of competition law are characterized by the interplay of national procedural rules – which, as far as arbitration is concerned, define the attitude of the national legal order towards this ‘private dispute settlement system’ (see Case C-126/97 Eco Swiss ) – and the need for the uniform application of EU competition law. National judges have to juggle these two different – and often contrasting – forces, while arbitrators have to take due account of EU competition law in order to render awards which are likely to encounter no difficulties in the context of a possible review before national judges, without having the possibility to resort to the preliminary ruling procedure (Case 102/81 Nordsee ). This legal framework governs the relationship between public and private enforcement when EU competition law issues are at stake in a dispute to be settled by an arbitrator or an arbitral tribunal. This framework has implications with regard to the arbitrability of EU competition law issues and to the duties of arbitrators called on to settle disputes where such issues may arise. One may say that EU competition law enforcement through international commercial arbitration suffers from a kind of imbalanced control mechanism, if compared with normal private enforcement.
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