Edited by Mel Marquis and Roberto Cisotta
Chapter 14: Analysis of recent competition cases decided by arbitrators
In recent years an increasing number of arbitral tribunals have been asked to interpret and apply competition law decisions by the European Commission. This new trend has emerged in the context of both international commercial arbitration and public international arbitration, and may grow stronger. This chapter examines two cases reflecting these developments: Reti Televisive Italiane v Sky Italia, and Electrabel S.A. v Hungary. Taken together, these cases illustrate some of the changes that can explain this new trend. They make it possible to start assessing how arbitral tribunals operating in different contexts have approached the same task, and how the Commission has approached arbitral proceedings where the implementation of its decisions was under scrutiny. Competition law issues are customarily raised in international commercial arbitration because parties often argue that a contract (or a clause thereof) is invalid on the ground that it runs counter to antitrust laws (for example, Articles 101 and 102 of the Treaty on the Functioning of the European Union, or ‘TFEU’). Until recently, arbitrators have generally addressed these issues before the European Commission (‘Commission’) issued a decision on the same facts. By contrast, public international tribunals have not traditionally dealt with competition law because disputes between States do not typically raise issues of this kind. This scenario seems to have evolved in the past 15 years. Specifically, an increasing number of arbitral tribunals are now being requested to interpret and apply Commission decisions.
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