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15 U.C. Davis Bus. L.J. 173 (2014-2015)
Antitrust and International Arbitration

handle is hein.journals/ucdbulj15 and id is 185 raw text is: 






ANTITRUST AND INTERNATIONAL ARBITRATION


                  CARLOS  RAGAZZO   AND MARIANA  BINDER


                                 ABSTRACT

       The  arbitrability of competition claims has been the subject of debate for
many  years. Traditionally, the focus of such debate has always been related to the
issue of public policy, imposed as a barrier to the arbitrability of this type of
dispute. The first part of the present article has the purpose of analyzing the
evolution of the referred debate and the consequent overcoming of the obstacle
initially set by public policy. Moreover, the practical considerations generated as
a result of the confirmation of said arbitrability, such as the scope of the
arbitrator's performance and the extension of judicial review, shall also be
analyzed.
       The  second part of the work aims at analyzing the issue of arbitrability of
antitrust claims from a new standpoint, different from the public policy one: that
of interparty relations and the existence of consent, similarly to what happens in
Consumer  Law.  The main object of analysis for this part shall be the Arbitration
Fairness Act of 2013, a bill still pending in the United States Congress, which
purpose  is to amend the U.S.  Federal Arbitration Act in order to invalidate
predispute arbitration agreements that establish resolution through arbitration of
labor, consumer, antitrust, and civil rights disputes.

                            TABLE  OF CONTENTS

INTRODUCTION              ......................................................... 174
1. THE FIRST ROUND: PUBLIC POLICY AND THE ARBITRABILITY OF
      COMPETITION  CLAIMS.............................................  175
      A. Case Law on the Arbitrability of Competition Claims ....  ...... 176
          1. Mitsubishi Motors Corporation v. Soler Chrysler-Plymouth,
             Inc............................................. 177
          2. Eco Swiss China Time v. Benetton International NV................... 178
      B. Practical Considerations Regarding the Arbitrability of
          Competition Claims    .....................         ...... ..... 180
          1. Scope of the Arbitrators' Performance ..................... 180
          2. Determination of the Applicable Law..............      ..... 181

 Professor of Antitrust Law, FGV Law School.
 Research Assistant, FGV Law School.

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