Since the Mitsubishi judgment, the arbitrability of antitrust cases has become a standard admitted in most – if not all – jurisdictions. Arguments based on competition law first arose in connection with agreements (e.g. vertical restraints) and quite quickly extended to abuses of dominant positions. Nevertheless, in the 2019 Shell (China) Limited v. Hohhot Huili Material Co., Ltd. case the Chinese Supreme People’s Court opted for a restrictive interpretation, excluding from arbitration civil disputes involving monopoly issues, since these are unrelated to contractual or other property rights.
Although merger control remains within the hands of competition authorities, arbitration procedures may be used in or even fully integrated into some measures relating to the implementation of remedies. For instance, the powers of a monitoring or divestiture trustee may be extended in order to allow it to render proper decisions and, as was the case in the EU Standard Trustee Mandate, give the possibility to the parties to provide for an arbitration clause. In connection with the proposed acquisition of Aleris Corporation by Novelis Inc., the buyer and the US Department of Justice agreed in 2019 on the terms of a binding arbitration procedure on the question of the relevant market under the Administrative Dispute Resolution Act of 1996 (5 U.S.C. § 571 et seq.). Beyond commercial disputes, one can observe interesting developments in sports arbitration, where parties have been invoking breaches of competition law by various organizations active in this field, including sports federations or anti-doping agencies.
In the Pechstein case, the German Federal Court (Bundesgerichthof) deemed both the arbitration clause and its acceptance by skaters to be valid, although athletes had no choice but to adhere to it if they wanted to participate in a competition. More specifically, it pointed out that both the national and international associations involved in this dispute were organized according to the “Ein-Platz-Prinzip”, i.e. they held exclusive competence over speed-skating competitions in Germany and internationally. Thus, the two federations as monopolists maintained dominant positions in their relevant markets. On the other hand, the imposed jurisdiction of the Court of Arbitration for Sport (CAS) was justified by legitimate grounds and therefore not abusive (paragraph 42 et seq.). Similarly, in International Skating Union v Commission (paragraph 163) the General Court accepted the argument that arbitration rules that confer on the CAS exclusive jurisdiction to review the legality of ineligibility decisions do not constitute an aggravating circumstance under the EU Guidelines on the calculation of fines. In a judgment of 2 October 2018, the European Court for Human Rights (ECHR) rejected objections pertaining to a fair hearing or a structural absence of independence and impartiality in the CAS, but admitted that the merits of the sanction imposed on Claudia Pechstein for doping required a public hearing.
Arbitral tribunals may not decline their competence and have to decide on issues pertaining to competition law, provided that these aspects are sufficiently related to the disputes covered by the arbitration clause. However, they have generally been denied the possibility to submit references for preliminary rulings to the Court of Justice of the European Union (CJEU). Indeed, the Court has consistently stated that an arbitral tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. Nevertheless, in its 2014 order in Merck Canada the CJEU confirmed that it would consider: “admissible preliminary questions referred to it by an arbitral tribunal, where that tribunal had been established by law, whose decisions were binding on the parties and whose jurisdiction did not depend on their agreement” (paragraph 18). While supporting the views expressed by legal authors that the prospect of a broader opening vis-à-vis other types of arbitration tribunals is not so remote, one should also nuance this perspective. Indeed, the 2018 Slovak Republic v. Achmea BV jurisprudence and the 2021 conclusions of Advocate General Maciej Szpunar in the Republic of Moldova v Komstroy case show, at least in the context of investment arbitration, that the CJEU is still reluctant to put national courts and arbitration tribunals on an equal footing.
Eco Swiss truly sets forth the standards on judicial review of an arbitral award by a national court in relation to a recognition and enforcement application filed by one of the parties in the EU. The Court first recalled explicitly that Article 101 TFEU constituted a fundamental provision which is essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market; in other words, it belongs to the provisions constituting public policy with the EU. Therefore, a national court must grant an application for annulment of an arbitration award founded on failure to observe national rules of public policy when such award does not comply with the prohibition laid down in Article 101 TFEU. This approach is consistent with the provisions of the New York Convention, since under its Article V(2)(b): “Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that [t]he recognition or enforcement of the award would be contrary to the public policy of that country.” However, this judicial review should be limited since, as the Court emphasized: “[I]t is in the interest of efficient arbitration proceedings that review of arbitration awards should be limited in scope and that annulment of or refusal to recognise an award should be possible only in exceptional circumstances” (paragraph 35). European national courts broadly share this approach, whether at the time of an appeal or in respect of a recognition and enforcement application. This is especially the case when antitrust issues are raised for the first time before a court of appeal or, even worse, while the winning party is seeking the recognition and enforcement of the award.
This last point calls for two additional remarks regarding the arbitrators themselves: first, the parties should in principle select arbitrators who master the basic concepts of competition law; second, when arbitrators decide ex officio to address antitrust questions, they should obviously respect the parties’ right to be heard and give them the opportunity to present all their arguments before rendering their award.
