Antitrust Arbitration and Public Policy
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INTRODUCTION
Antitrust arbitration is a successful mechanism, which is considered very suitable for
highly complex, multi -jurisdictional disputes. It is well- established and increasingly used.
Interestingly, only three decades ago such a scenario was unthinkable. As one US court
stated in the 1960s, just as 'issues of war and peace are too important to be vested in the
generals... decisions as to antitrust regulation of business are too important to be lodged
in arbitrators chosen from the business community1 At that time, it was widely feared
that arbitrators, especially foreign ones, with no exposure to domestic rules and values,
could evade antitrust rules. For the sake of their protection, national courts were granted
exclusive jurisdiction over cases involving competition law. The inarbitrability of antitrust
disputes has become a global standard.
A breakthrough came in the mid-1980s It was mostly inspired by judicial developments
in the United States.2 Within a few years, the arbitrability of competition law-related
disputes was acknow ledged in Europe. Surprisingly, the whole process involved a smooth
transition 'from distrust to embrace.? The initial fear that alternative dispute resolution
mechanisms could be inimical to effective competition law enforcement has been easily
replaced by general praise for antitrust arbitration and its dynamic development. The
focus in the debate has shifted accordingly: from the issue of capability of resolution of
antitrust disputes by arbitration to the question of judicial control over its outcome. Any
discussion on antitrust arbitration remains inextricably entangled with public policy
considerations.
The notion of public policy (ordre public) encompasses fundamental values and
principles, pertaining to justice and morality that states wish to protect.' It is universally
acknowledged that competition rules, designed to serve essential political, social and
economic interests, are part of public policy.' The implications of this conclusion used to
be an obstacle at the arbitrability level and are now of practical importance at the award
enforcement stage.
1.Ari ican Safety Eq op -nie orEvot JPMagtire& Co, 391 F2d 821,826-827 (2dCir 1968).
2. Milsubishi X lors Coqv Soe P Jiil 1) Ph outh In- 473 US 614 (1985).
3. Assirnakis Komininos, Arbitration and ELCo nipetition Law' i1 Jirgen Basedow, Stephanie Francq and LaUrence Idot
(eds), International Antitrust Litigation: Conflict o Laws and Coordination (Hart Publishing 2012) 192
4. Parsons - Vhitteinore Overseas v RAKIA and Bak olAnterica, 508 F 2d 969, 974 (2d (ir 1974); Pierre Mayer,
Audley Sheppard, inal ILA Report on PubPolicy asa Bar t Enforcement of International Arbitral Awards' (2003)
19 Arbitration International 2o, 255 (ILA Report).
5. See Christoph I ebscher, , V.e tpication of co Swiss: Review of the Case Iaw and Future
Prospects' in CGord o1 BlI1ke al Phillip Landolt (eds), EU and US Antitrust Arbitration, (KILi ver Law International
201); cf Philipp Landolt, 'J ugment of the Swiss SUpremie Court of 8 March 2006 - A Commentary [2008] ELropean
tusiness Law eview 129.](ViewImageLocal?handle=hein.journals/qmlj3&div=4&collection=&method=preview&ext=.png&size=3)
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