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7 Competition L. Int'l 7 (2011)
Antitrust and Arbitration in Regulated Sectors

handle is hein.journals/cmpetion7 and id is 85 raw text is: ANTITRUST AND ARBITRATION Antitrust and Arbitration T he articles in this section reflect the diverse role played by arbitration in competition law and by competition law in arbitration. The article by Decker and Gray discusses the use of arbitration in regulated industries for the resolution of disputes. Here it is common for the regulator to be the arbitrator. Arbitration is being used in this situation as a pragmatic response to the challenges of enforcing antitrust law in regulated sectors. There are other scenarios where competition law issues arise in the course of an arbitration. Those issues may be raised directly by the parties or are raised by the arbitrator and if they arise, they need to be raised or there is a risk that the arbitral award will not be enforced. The article by Professor Radicarti di Brosolo discusses how arbitrators apply competition law and the way in which courts have interpreted their role in reviewing the application of competition law by arbitral bodies. That has lead to a relatively happy coexistence which has a sound base in theory. The question which then arises is what are the practical challenges for the arbitration of competition law issues? In Mamane and Menz's article, the authors discuss some practical issues focusing on how evidentiary issues are dealt with and the challenges they bring, given an arbitrator does not have coercive powers. As a whole, the articles in this section reflect the increased importance of arbitration in the context of competition law and demonstrate the flexibility which arbitration has and the benefits which accrue to the parties as a result. Linda Evans Clayton Utz, Sydney Antitrust and Arbitration in Regulated Sectors Christopher Decker University of Oxford, Oxford christopher.decker@css.ox.ac.uk Introduction Antitrust and economic regulations are often viewed as functional substitutes in regulating network industries (such as telecommunications, gas, electricity and water) . However, regulators in some jurisdictions have shown a preference for economic regulation over antitrust2 (despite a general policy expectation that, as competition develops in a sector, there will be a transition towards antitrust) .3 COMPETITION LAW INTERNATIONAL November 2011 Harriet Gray Australian National University Canberra grayh@Iaw.anu.edu.au This article explores why this preference may exist by examining a frequently used tool of economic regulation: arbitration or dispute resolution by the regulator. The use of 'regulatory arbitration' as an alternative to antitrust intervention is explored using the Australian and United Kingdom (UK) telecommunications regimes as case studies. We conclude that regulatory arbitration may represent a pragmatic response to the challenges associated with enforcing antitrust law in regulated sectors. However, 7

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