Glossary

This Glossary matches the list of keywords used by Concurrences search engine. Each keyword is automatically updated by the most recent EU and national case laws from the e-Competitions Bulletin and Concurrences Review. The definitions are excerpt from DG COMP’s Glossary of terms used in EU competition policy (© European Union, 2002) and the OECD’s Glossary of industrial organisation economics and competition law (© OECD, 1993).

Arbitration

Arbitration can be defined as a situation in which a private judge or arbitrator, agreed upon by the parties and under contract, is given the task of settling a dispute through issuing an arbitration decision. This definition has a number of key characteristics. Arbitration is a private way to settle a dispute. Arbitrators are therefore distinct from judges as they have the power to state the law, but not the power to apply it. The cost of the arbitration is covered by the parties involved in the dispute. This includes the cost of the arbitrator, the arbitration institution if there is one, and any experts involved in the process. Arbitration is usually adopted in cases involving commercial issues between the parties, for example resolving a contract. However arbitration could also be used in situations involving a state body where there is no commercial relationship, between for example a company and a competition authority. Other characteristics of arbitration include: quick resolution of the dispute and methods of recourse against the final decision of an arbitrator; the autonomy of an arbitration clause should be recognised, and the fact that the arbitration clause can be separated from the rest of the contract (i.e. if a contract is null and void following a competition violation, this does not nullify the arbitration clause). Finally it is the arbitrator who pronounces his or her competence to take on the matter rather than the state (so-called principle of ‘competence-competence’). Arbitration can either be international, in which case the arbitrator has a wider freedom to establish the framework of the procedure, or domestic which means the arbitrator must apply a number of rules and regulations related to public policy. Arbitration can also be institutional or ad hoc. Institutional arbitration is administered and managed by an arbitral institution, of which there are a number in the world to choose from. Ad hoc arbitration follows the law of arbitration and all the relevant procedures, but is overseen by the parties’ agreement. Recent cases have demonstrated a clear shift from ad hoc arbitration to institutional arbitration which is now the commonly adopted process. However, two important considerations include (i) the choice of chairperson for institutional arbitration, as if the parties do not agree this can be problematic, and (ii) the choice of institution itself, as there are a number of arbitral institutions but not all have the requisite experience. It is therefore important to choose an established arbitration institution. © OECD

Arbitration is a dispute resolution mechanism in which parties agree to have their dispute resolved by a private third-party decision-maker, rather than through litigation in public courts. The parties agree in advance that the decision-maker’s ruling will be binding on them, rather than merely advisory. Although arbitration is often described as a form of alternative dispute resolution, and it does indeed provide an alternative to court litigation, arbitration’s current success has resulted substantially from the support it has received from governments and courts. Consequently, while one of arbitration’s primary benefits is the freedom that it gives to parties to resolve their dispute in a manner different than that adopted in national courts, it must be remembered that arbitration is nonetheless heavily dependent on both national legal systems and national courts. © European Parliament

Since the Mitsubishi judgment, the arbitrability of antitrust cases has become a standard admitted in most – if not all – jurisdictions. A great number of books, articles and notes have been published on the subject. Nevertheless, experience shows that several questions may still arise and that the parties should count not only on practitioners understanding the fundamentals of competition law but also on arbitrators being truly allergic to arguments of this type or being simply incompetent in the matter. Although merger control remains within the hands of competition authorities, some measures relating to the implementation of remedies may be close or even integrated into arbitration procedures. © Excerpt from Christian Bovet in the e-Competitions special issue "Arbitration & Antitrust"

Glossary