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GLOBAL ANTITRUST REVIEW
types of remedies are strongly anticipated to be complemented by a model arbitration clause
that may well be used in several merger remedy scenarios 16 . This is why the nature, the
parameters, and the future prospects of the so-called ‘remedy arbitrations’ 17 constitute at
present one of the most divisive and burning debates within the arbitration and competition
communities in Europe.
2. INTERNATIONAL COMMERCIAL ARBITRATION AND ARTICLES 81 AND 82 EC –
COMPETITION ARBITRATIONS.
(A) ARBITRABILITY OF COMPETITION LAW DISPUTES
In general, arbitrability answers the question of what types of disputes can be submitted
to arbitration. Each state, based on its sovereignty, retains the power to formulate its own
answer to this question according to the public policy considerations prevailing at a certain
time within its domain. Indeed, as noted by some commentators, ‘arbitrability determines
the point at which the exercise of contractual freedom ends and the public mission of
adjudication begins.’ 18
Albeit highly controversial in the past, the arbitrability of competition law disputes is
now generally acknowledged on both sides of the Atlantic. In the USA, the arbitrability of
competition law has not been debated since the dust of Mitsubishi 19 case settled. In the EC,
the arbitrability of EC competition law was implicitly yet doubtless confirmed in the
seminal judgment of the European Court of Justice (ECJ) in Eco Swiss 20 , where the ECJ also
underlined the Member States’ interests in the sound and effective operation of arbitration. 21
EC law aside, the current legislation and jurisprudence of the leading European
jurisdictions clearly gravitate in the same direction. 22
It is important to stress at this point that when referring to the arbitrability of
competition law, one invariably focuses on the ‘civil’ aspect of competition law, namely on
Notice on Remedies, i.e. Commission Notice on remedies acceptable under Council Regulation (EEC) No 4064/89
and under Commission Regulation (EC) No 447/98, OJ 2001 C68, remains in force.
16
J. Luebking,‘Revision of the Notice on Merger Remedies’, (2007), 2 Competition Policy Newsletter 6, at 8-9.
17
As made clear above, arbitration commitments may arise not only in the context of the Merger Regulation and its
remedies scheme, namely the Commission’s merger-related decisions declaring certain concentrations to be
compatible with the common market subject to specific conditions, but also in the context of the Modernisation
Regulation, and in particular its Article 9, which clearly, though tacitly, invites arbitration commitments within the
scope of the Commission’s Article 81(3) EC individual exemption clearance decisions. Such arbitration scenarios are
generally termed ‘remedy arbitrations’ or ‘EC remedy-related arbitrations’.Although the present paper is confined to
the analysis of the former type of remedy arbitrations, the same analysis applies mutatis mutandis to the latter type as
well. For a very recent use of an arbitration commitment in a decision under Article 9 of the Regulation 1/2003 see
Case Comp/37749 Austrian Airlines and SAS AB.
18
See Carbonneau and Janson,‘Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability’,
(1994), 2 Tulane Journal of International and Comparative Law 193, at 194.
19
Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth, Inc., 473 US 614 (1985).
20
Case C-126/97 Eco Swiss v. Benetton [1999] ECR I-3055.
21
Ibid, para 35.
22
For a comparative survey see P. Landolt, above note 7, Chapter 5. See also D. Rahmann, ‘Arbitrability of Antitrust
Issues’, (1990), 12 Comparative Law Yearbook of International Business 97.