Marc Deschenaux of Deschenaux, Hornblower & Partners, LLP has kindly asked me to bring to your attention this paper entitled The Role of the Arbitrator in Applying EU Competition Law under the Modernisation Process authored by his colleague Debora Pinto.
International Commercial Arbitration is an increasingly important method of adjudicating cross-border disputes between business actors and ‘is likely to become an increasingly important area for competition policy and enforcement.’ Even though arbitration as an appropriate forum is not under analysis, its characteristics may be helpful in understanding some of the shortcomings experienced in arbitral proceedings when applying European Union (hereinafter “EU”) Competition Law. The confidentiality of the arbitral proceedings, even if often seen as an advantage in the parties’ perspective, may result in an impediment to the collaboration of the European Commission (hereinafter “Commission”) or the National Competition Authorities (hereinafter “NCAs”), and in a broader context to the public enforcement of EU Competition Law. The wide scope of recognition and enforceability of the arbitral awards, in view of the success of the New York Convention , is another important consideration which is, nevertheless, closely related to the arbitrators’ expertise. Arguably, ‘arbitration is only as good as its arbitrators’ which means that the expertise of the arbitrator will be determinant when dealing with EU Competition Law issues, in light of the inherent complex factual and economic considerations required to reach a decision, not to mention a general duty to render an enforceable award. However, his expertise may not be sufficient to render an enforceable award if there is lack of support by the Commission or the Court of Justice of the EU (hereinafter “CJEU”). It is precisely the fact that arbitration is a consent-based jurisdiction that tends to preclude arbitrators from submitting preliminary rulings to the CJEU. Also, the fact that arbitration is expeditious, especially when compared to litigation, makes it a privileged forum for business actors. Nevertheless, the enunciated procedural shortcomings may ultimately lead to its inefficiency, especially if subject to review before national courts.