Paris

Arbitration and competition law

Lunchtalk organized by Concurrences Review in partnership with McDermott Will & Emery.

Introduction

Laurence Idot

One may wonder whether competition law and arbitration - in the strict sense, to the exclusion of alternative dispute resolution (ADR) - are not an impossible couple. There is a prima facie consubstantial conflict between the two matters: the principle of autonomy specific to arbitration clashes with the public policy character of competition law. This conflict is heightened by the specialisations existing within law firms and universities. Meetings are therefore rare but nevertheless necessary.

It is possible to distinguish four phases in the history of the arbitration-competition couple. Between the 1970s and the 1990s, the debate centred on the arbitrability of competition law issues, especially in antitrust. In the United States, the Supreme Court answered in the affirmative in the Mitsubishi decision in 1985. In Europe, where the subject was a matter of procedural autonomy, solutions varied according to the criteria chosen by national laws: free disposition of rights or public policy criteria, as in France. After lively discussions, the Labinal decision of the Paris Court of Appeal admitted the arbitrability of competition law disputes in 1993. At the same time, in EU law, the ECJ had already in 1982 rejected the admissibility of preliminary questions from arbitral tribunals in the famous Nordsee ruling). In the second phase, before the national courts, the debate shifted to the question of the scope of review of awards despite the ECJ’s Eco Swiss ruling of 1999, which is still subject to divergent interpretations today. Within the Commission, a new debate has started on the appropriateness of the use of arbitration clauses in the monitoring of behavioural commitments in merger control. A third phase began with modernisation in the early 2000s. In antitrust, the latter has resulted in a widening of the role not only of national judges but also of arbitrators. In practical terms, a frequent question is the validity of non-competition clauses. There has also been a rationalisation of the use of arbitration for the control of commitments, a technique which has also been extended to antitrust commitments. In France, the debate on the scope of control of awards was revived by the Thalès case in 2004.

Photos © Léo-Paul Ridet.

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Speakers

  • University Paris II Panthéon‑Assas
  • McDermott Will & Emery (Paris)
  • McDermott Will & Emery (Paris)