Arbitration and Antitrust An overview of EU and national case law

Arbitration and Antitrust: 

An overview of EU and 

national case law 

l 13 April 2012 l N°45083 

www.concurrences.com 

PHILLIP LANDOLT 

Landolt & Koch (Geneva) 

phillip@landoltandkoch.com

Arbitration and Antitrust: 

An overview of EU 

and national case law 

PHILLIP LANDOLT 

Landolt & Koch (Geneva) 

phillip@landoltandkoch.com 

I. Introduction 

Arbitration is a prominent method of binding dispute resolution 

in international commercial relations. Some commentators, 

generally international arbitration practitioners, 

even claim that it is “the preferred method of international 

dispute settlement”. Since arbitration ousts all other 

substantive jurisdiction, where there is arbitration it is 

generally the only opportunity for the private enforcement 

of antitrust laws concerning the parties to the arbitration. 

The case law on antitrust and international arbitration 

features two prominent issue clusters, and scattered 

other issues. The first of the prominent issue clusters 

comprises questions as to the extent to which states are 

prepared to leave antitrust determinations to arbitrators. 

Within this cluster are therefore issues of the arbitrability 

of antitrust disputes, and refusals to enforce arbitration 

awards because of their incompatibility with antitrust 

laws. The second issue cluster relates to questions of the 

efficacy of antitrust enforcement within arbitration. Thus 

in this cluster one finds issues of what support states will 

provide to favour the enforcement of antitrust law in arbitration. 

This article will introduce the case law on these issues. 

The focus will be on the antitrust and international arbitration 

laws of the major jurisdictions - the United States, 

the European Union -, and their component members, as 

well as Switzerland. 

It should be mentioned here in this introduction that much 

of the treatment of antitrust law in the context of international 

arbitration is conducted by arbitral tribunals themselves. 

This occurs in commercial, sports and investment 

arbitrations. Certain regulators, notably the EU Commission, 

even delegate portions of their activities to arbitral 

tribunals, such as determinations upon merger control 

behavioural remedies. But the publication of arbitral 

awards is sporadic for commercial arbitration, which is 

where the great majority of antitrust questions arise. Thus 

no reliable conclusions may be drawn from what is published 

[1] . 

II. States Acceptance 

of Arbitration 

1. Arbitrability and unenforceability 

of arbitration clauses 

A. US Law 

In Mitsubishi v. Soler [2] the questions before the United 

States Supreme Court were, first, whether the parties 

intended antitrust claims to be within their arbitration 

clause, and, secondly, whether a conspiracy claim under 

§1 of the Sherman Act was of a type permissible to be 

settled by arbitration, i.e. (objectively) arbitrable. The first 

question is dealt with in section B. below. 

As for the second question, the six to two majority 

decided that US federal antitrust claims were arbitrable 

in international matters. Previously, the Court of Appeals 

for the Second Circuit had found in American Safety v. J. 

P. Maguire [3] that antitrust law was not arbitrable. In Mitsubishi 

the Supreme Court distinguished American 

Safety on the basis of the international character of Mitsubishi, 

and the federal policy of supporting arbitration in 

the service of international commerce. In reaching their 

conclusion in Mitsubishi the majority rejected four objec- 

Arbitration and Antitrust: An overview of EU and national case law 

PHILLIP LANDOLT l 13 April 2012 l e-Competitions l N°45083 l www.concurrences.com 

1

tions, but the one it considered the most forceful (calling 

it the “American Safety doctrine”) was that accepting the 

arbitrability of international antitrust disputes would 

weaken the private enforcement of antitrust laws. 

The Court found though that there was no reason from 

the outset to conclude that arbitrators would not apply 

antitrust law. Arbitrators are bound to “effectuate the intentions 

of the parties” [4] and if one party makes a claim 

based on antitrust law the tribunal will be required to 

decide it. Moreover, the Supreme Court pointed to the 

availability of public policy review at the stage of the enforcement 

of the arbitral award. Under the widely-applicable 

1958 New York Convention on the Recognition and 

Enforcement of Arbitration Awards, one of the few 

grounds to refuse to enforce is where the award is 

contrary to public policy. The Supreme Court famously 

held in Mitsubishi that “it would not require intrusive 

inquiry to ascertain that the tribunal took cognizance of 

the antitrust claims and actually decided them”. This has 

come to be known as the “second look doctrine”. 

In Vimar Seguros [5] the Supreme Court held that an arbitration 

clause was enforceable insofar as the alleged attenuation 

of statutory rights had not yet occurred. The 

rights there were not rights under the Sherman Act, but 

rather rights under the Carriage of Goods by Sea Act. 

Since, however, before an arbitral tribunal has the opportunity 

to determine statutory rights it will almost never be 

clear that it will not do so, Vimar Seguros appears firmly 

to establish the principle of arbitrability of antitrust rights 

arising by statute, such as under the Sherman Act. 

There is a significant body of case law in the US on the 

question of whether the lessening of particular rights due 

to their having to be asserted in arbitration, or in arbitration 

of a certain character, may result in the invalidation 

of an arbitration clause. As regards antitrust law, these 

cases are material for two reasons. First, statutory rights 

such as those under the Sherman Act are often intended 

to be mandatory, and may not therefore be attenuated by 

private agreement, such as an agreement to arbitrate. 

Secondly, where arbitration lessens the ability to bring a 

claim, or otherwise the prospects of it, it might be unenforceable 

for unconscionability. Especially with horizontal 

agreements in restrain of competition, there are often a 

multitude of antitrust plaintiffs each with a claim of modest 

value. Arbitration and features of arbitration (classically a 

prohibition on representative and class actions, and even 

consolidation) may make the vindication of such claims 

an impossibility. 

In AT&T Mobility v. Concepcion [6] the US Supreme Court 

held that a prohibition on class arbitration and consolidation 

in arbitration did not invalidate the arbitration clause 

there. The Federal Arbitration Act favouring arbitration 

took primacy over state law seeking to protect from 

unconscionable contracts. In Vimar Securos [7] , the majority 

of the US Supreme Court held that the mere increased 

costs entailed in arbitrating statutory rights in a far-flung 

place does not invalidate the arbitration clause. In Green 

Tree Financial Corp.-Alabama v. Randolph [8] the US 

Supreme Court accepted (unanimously on this point) the 

principle that high costs of arbitrating a statutory claim 

(there Truth in Lending Act and Equal Credit Opportunity 

Act claims) may be a basis to invalidate the arbitration 

clause, but placed the burden of showing this squarely 

upon the party impugning the arbitration clause. In In re 

American Express Merchants’ Litigation [9] the Court of 

Appeals for the Second Circuit found, on the meticulous 

evidence there, that the exclusion of class actions, representative 

actions, and consolidation in an arbitration 

clause effectively deprived the “small merchant” plaintiffs 

of the statutory protections under antitrust laws, on the 

basis that the size of any potential remedy would not 

justify the expense of an individual arbitration. The Court 

pronounced the whole arbitration clause unenforceable, 

and not just the class action waiver. In Kristian and Masterman 

v. Comcast Corporation [10] the Court of Appeals 

for the First Circuit declared in obiter that an exclusion of 

§4 Clayton Act treble damages and reasonable attorney’s 

fees as remedies that arbitrators could award would have 

been unenforceable. The Court also invalidated a prohibition 

on class-action arbitration and required that any 

arbitration proceed as a class-action arbitration, but this 

does not survive the US Supreme Court’s decision 

in Stolt-Nielsen [11] . In In re Cotton Yarn Antitrust Litigation 

[12] , the Court of Appeals for the Fourth Circuit held 

(unanimously on these points) that an exclusion of joinder 

and a contractually agreed shortening of the four-year 

time limitation period in the Clayton Act to one year untollable 

in an arbitration did not prevent that plaintiff from 

asserting its rights under antitrust statutes. The Court 

emphasized that the burden on the party impugning the 

arbitration clause is a substantial one and proof must be 

concrete and not speculative. 

B. EU and EU Member State Law 

There is no decision of the EU legal order explicitly pronouncing 

EU competition law to be arbitrable, although 

this is not doubted since it is an inference which can be 

drawn from a number of decisions of the European Court 

of Justice (ECJ), and at all events the EU has never done 

much to resist such arbitrability. The EU has in recent 

years itself positively embraced arbitration, by subjecting 

certain EU competition law determinations to arbitral tribunals. 

In the Eco Swiss [13] case the ECJ was expressly concerned 

not to interfere with arbitration and the finality of arbitration 

awards. In that case, moreover, it limited the required 

material review of arbitration awards to review for 

public policy violations. By inference then, in Eco 

Swiss the ECJ, and with it the EU legal order, accepts the 

arbitrability of EU competition law. 

Where the question has even arisen, courts in various EU 

Member States have pronounced their respective competition 

law to be arbitrable [14] . It would appear moreover 

that there is nothing in EU law which would prevent the 

legal order of an EU Member State from treating EU competition 

law as inarbitrable, but none has done so. 



2

On the other hand, in many cases contracts with consumers 

will not be enforceable as a matter of EU law. 

In Mostaza Claro [15] the ECJ held that the arbitration 

clause in a mobile telephone contract was not enforceable 

based on protections in the Unfair Contracts 

Terms Directive [16] . The judgment does not indicate what 

about the arbitration clause was unfair. In Asturcom [17] , 

however, the judgment points out that the arbitration 

clause was invalidated because of the disproportionately 

high cost of the arbitration, in this case in the consumer’s 

travelling to the place of arbitration, and the amount in 

dispute, as well as the fact that the institution which provided 

the standard-form contract which was the subject 

of the dispute was also the institution administering the 

arbitration. 

C. Swiss Law 

Under Swiss law, competition law is arbitrable [18] . 

2. The Scope of Arbitration Clauses 

In Mitsubishi, the US Supreme Court rejected the argument 

that arbitration clauses are to be construed to 

exclude claims upon statutory rights, such as the rights 

under the Sherman Act there at issue, unless the arbitration 

clause expressly includes such claims. The Supreme 

Court saw no reason to depart from the general principle 

under the Federal Arbitration Act that “any doubts 

concerning the scope of arbitrable issues should be resolved 

in favor of arbitration”. 

In Louis Dreyfus v. Blystad [19] , the Court of Appeals for 

the Second Circuit held that in determining whether a 

claim based on the Sherman Act is within an arbitration 

clause the court should distinguish between broadly 

worded and narrowly worded arbitration clauses. For the 

former, even claims on matters “collateral” to the contract, 

such as those under the Sherman Act, should be presumed 

to be within the arbitration clause. In JLM Industries 

v. Stolt-Nielsen [20] , the Court of Appeals for the 

Second Circuit confirmed this approach, there concerning 

price-fixing conspiracy claims. 

Purchasers claiming losses due to horizontal anti-competitive 

conduct will often each have small value claims 

subject to arbitration. It is therefore not surprising that the 

case which came before the US Supreme Court raising 

the question of how to interpret arbitration clauses in 

relation to the availability of class action arbitrations involved 

an antitrust claim. The case was Stolt-Nielsen 

v. Animal feeds International Corp [21] . The 5 – 3 majority 

held that one cannot infer the parties’ acceptance of 

class arbitration from mere consent to arbitrate since 

class arbitration changes the nature of arbitration to such 

a great degree. The majority’s reasoning would not 

appear to apply to inferring intent to consolidate arbitrations 

providing the number of claimants was not too 

great. As pointed out by the minority, it would not appear 

to apply to consumer arbitrations either. 

There is a series of District Court decisions granting preliminary 

injunctions to prevent arbitrations by AT&T customers 

seeking to impede the merger between AT&T 

Mobility and T-Mobile. In all there were over 1,000 such 

arbitrations launched each by an individual customer, 

since the arbitration clause prohibited class arbitrations. 

The clause also expressly limited remedies in arbitration 

(and perhaps more generally, a point the court left open) 

to those necessary to relieve the individual’s prejudice. 

The best reasoned is the decision of the District Court for 

the District of Maryland in AT & T Mobility LLC v. Fisher [22] . 

The District Judge found that the remedy of a preliminary 

injunction to prevent a merger as in violation of §7 of 

the Clayton Act is by its nature a public remedy, and 

extends beyond the relief for any injury which may be 

caused to the individual plaintiff. As such, this claim is in 

the nature of a representative action, and is beyond the 

scope of the arbitration agreement. While this reasoning 

may not be entirely convincing, this case does raise the 

important question of the scope of antitrust remedies 

which may be granted in arbitration. 

3. Annulment of and Refusals to 

enforce Arbitration Awards 

A. General 

As seen in section II.A.1. above, Mitsubishi v. Soler [23] 

contains a footnote about enforcement stating that courts 

will have no difficulty identifying arbitration awards which 

fail to deal adequately with antitrust law, and will refuse to 

enforce such awards. 

Eco Swiss [24] is a case on availability of annulment of an 

arbitration award contrary to EU competition law. Nonetheless, 

in that case the ECJ went out of its way to say 

that all of the then Member States were signatories to the 

New York Convention, and that EU competition law must 

be treated as public policy matters within the meaning of 

the New York Convention [25] . 

The Swiss Supreme Court held [26] that competition law 

is not of sufficient importance, is insufficiently applicable 

around the globe, and that there is too much variance 

among competition law systems for an arbitration award’s 

incompatibility with competition law to form the basis of 

a public policy annulment or refusal to enforce an arbitral 

award. 

B. Standard of Court Review of Arbitration 

Awards for Compatibility with 

Antitrust Law 

i. US Law 

As seen above, Mitsubishi v. Soler [27] is largely silent on 

the question of the standard of review of arbitration 

awards at the annulment and enforcement stages, in 

relation to antitrust law. Clearly though, the suggestion 

there is that the reviewing court need only verify that antitrust, 

where raised, has been dealt with by the arbitral 

tribunal, and need not enquire into how the tribunal dealt 

with it. 



3

In Baxter v. Abbott Laboratories [28] , Easterbrook, Circuit 

Judge for the majority of the Court of Appeals for the 

Seventh Circuit cited Mitsubishi as authority for declining 

to review the treatment of antitrust law in an arbitral 

award on the basis that the arbitrators had dealt with 

antitrust law in the arbitration, and moreover, there was 

no violation anyhow. Cudahy, Circuit Judge dissented, 

contending that the court was obligated “[to] examine the 

effect of the outcome commanded by the arbitral award”. 

ii. EU Law 

The standard of review under EU law is a much more 

debated matter. In Eco Swiss the ECJ refers to such 

review as being “more or less extensive depending on 

the circumstances” [29] . But this comment is made in 

the context of the Member State court’s review as it 

exists without regard to whatever requirements there 

may be under EU law. By consequence, Eco Swiss is 

entirely silent on the issue of standard of review. Subsequent 

cases dealing with the review of international 

arbitration awards add extremely little. This is not the 

same as saying that the EU legal order makes no 

demands as regards Member State courts’ standard 

of review. Rather, the matter is almost entirely open 

and on appropriate occasion will be settled by the ECJ. 

The case of Mostaza Claro [30] is often taken to have 

built upon Eco Swiss, but the requirements upon EU 

Member States issuing from the latter operate upon 

the EU law principle of equivalence, whereas Mostaza 

Claro is a case where EU law norms apply to require 

Member State courts pro-actively to ensure consumer 

protection by raising such matters of their own motion. 

In that case the consumer participated in the arbitration, 

and did not there impugn the arbitration clause as 

unenforceable under the directive until the stage of 

enforcement before the Spanish courts. So the significance 

of Mostaza Claro is limited to consumer arbitrations. 

On the other hand, Asturcom [31] does build upon Eco 

Swiss in the sense that it is relevant to international 

arbitration generally, and not just in the consumer protection 

context. This is because it operates upon the 

principle of equivalence, which of course is generally 

applicable in relation to Member State review of international 

arbitration awards. It would appear to stand 

for the proposition that the court requested to enforce 

an arbitration award is required to raise the public 

policy point of its own motion, “where it has available 

to it the legal and factual elements necessary for the 

task” and insofar as “under national rules procedure, it 

can carry out such an assessment in similar actions of 

a domestic nature”. The source of the limitation where 

it “has available to it the legal and factual elements 

necessary for the task” is an earlier consumer protection 

case relating to choice of court jurisdiction (and 

not arbitration) [32] . It would appear that this wording will 

be relevant when the question of the standard of 

Member State public policy review of international arbitrations 

finally arrives before the ECJ. 

iii. EU Member State Law transposing EU Law 

There is by now a significant corpus of Member State 

court decisions on the standard of public policy review of 

EU law aspects of international arbitration awards. 

In Thalès [33] the Paris Court of Appeal expressed the surprisingly 

absolutist view that EU law does not interfere 

with the procedural rules governing the enforcement of 

arbitral awards by EU Member State courts. From this it 

concluded that EU law permits Member State public 

policy review of arbitration awards to operate in regard to 

EU competition law indistinguishably from how it operates 

generally. The court then recited the French standard of 

review of international arbitration awards, which are 

thereby left undisturbed insofar as they disclose no “flagrant 

effective and concrete” violation of public policy. 

The court found that there was no such violation on the 

following evidence. First, the basic features of the arbitration, 

like the counsel of the party now raising the competition 

law point, the arbitrators, and the arbitral institution 

did not suggest any incapacity to deal with EC competition 

law such that if there had been an obvious competition 

law problem on the facts it would have been raised 

in the arbitration. Secondly, the court turned to the evidence 

of violation extending from the parties’ submissions 

before it. The court noted that there may be a competition 

law justification for the restrictive provisions, for 

example the development of a new missile and that the 

parties may actually be active in two different but adjacent 

markets. Somewhat inappositely, the court added 

that Thalès, the party seeking the competition law 

remedy, might bear “significant responsibility” for any viol 

a t i o n , a p p a re n t l y w i t h i n t h e m e a n i n g o f 

Courage v. Crehan [34] , although the issue here was invalidity 

of the contract, and not a claim in damages. 

The Cour de cassation confirmed this uniquely lax standard 

of review in the Cytec [35] case. It also found there 

that damages aspects of EU competition law are not 

public policy matters for the purpose of the review of international 

arbitration awards. 

In Italy, the Milan Court of Appeal examined [36] whether 

an arbitral award “neglected, failed to apply, or was 

contrary” to EU competition law. It examined the “logical 

progress” and “legal foundations” of the award in coming 

to this conclusion. The analysis there was therefore purely 

legal, with an acceptance of the facts as found in the 

court below. This case follows a decision of the Court of 

Appeal of Florence on the same issue, of confusing reasoning, 

but at all events tending to the conclusion that 

review must be tightly circumscribed [37] . 

In SNF v. Cytec first the Brussels Court of First Instance 

[38] and then the Brussels Cour de Cassation [39] 

considered a request for annulment of an arbitration 

award in which the arbitral tribunal, a member of which 

was a former Competition Commissioner of the EU, 

found that a contract was invalid as in violation of Art. 101 

TFEU, but still awarded damages. Contradiction in an 

award is a specific ground of annulment under Belgian 

arbitration law. The Brussels Court of First Instance found 



4

that it was contradictory that the award declared the 

contract void while still ordering payment, and annulled 

the award. The Cour de Cassation reversed, on the basis 

that the payment was not in the nature of damages for 

breach of contract, but rather an attempt to reconstruct 

the position that would have prevailed if the parties had 

not acted in accordance with the contract. 

In a 2004 decision [40] concerning proceedings to enforce 

an arbitration award, the Court of Appeal of Düsseldorf 

considered the compatibility with EC competition law of 

an arbitration award rendered in Zurich. It conducted an 

extensive examination of the evidence, including the 

hearing of witnesses, and, after a detailed and wide-ranging 

examination of the legal aspects of the case, 

concluded that the award accurately applied EC competition 

law, finding, in particular, that the commercial 

contract fell within the 1989 know how licensing agreement 

block exemption. 

The Court of Appeal of Thüringen, Germany was 

requested to deny the enforcement of a Swiss arbitration 

award in the case of A.G. Co v. Sch. AG [41] on the 

basis, inter alia, that it was contrary to German and EC 

competition law. The Court determined, even upon “a 

summary plausibility review” of the award, that the arbitral 

tribunal in fact had correctly applied German and EC 

competition law. In coming to this conclusion it referred 

to the “comprehensive examination” in the arbitral award. 

The Court moreover observed that at the enforcement 

stage it was not appropriate to conduct a “new comprehensive 

examination” of the award’s compliance with 

competition law. 

In the Demkolec case [42] the Dutch state agreed principles 

of compensation to the parent company of 

the Demkolec coal gasification plant, for its loss in the 

sale of the plant following an EU regulatory change. The 

Dutch government assessed this loss within a range, and 

notified this range to the European Commission as State 

aid under what is now Article 108 (3) TFEU. The Commission 

issued a decision approving this State aid, and the 

Dutch government then made a compensation payment 

to Demkolec’s parent well toward the high end of the 

range. Demkolec’s parent felt that this assessment did 

not reflect a proper application of the agreed principles of 

compensation, due to a change in circumstances, and 

claimed for more. The Dutch government and Demkolec’s 

parent agreed to submit this claim to arbitration in 

the Netherlands under the rules of the Dutch Arbitration 

Institute. The arbitral tribunal issued an award granting 

Demkolec’s parent company much of what it was 

seeking, as well as compensation for its costs commensurate 

to its success. The Dutch government resisted 

enforcement of this award before the Hague District 

Court, contending that it was contrary to the Commission’s 

decision. It also notified the payment of the award 

to the Commission as further State aid. The Hague District 

Court carefully reviewed each of the alleged points 

of departure from the Commission’s decision, and found 

that in fact there was no incompatibility. Moreover, it 

refused to request the opinion of the Commission, and to 

defer deciding the matter until the Commission’s decision 

on the further State aid, on the basis that it could not be 

ascertained when that would come. This case is therefore 

one where the court reviewed the arbitration award intensively 

to ensure that it complied with principles approved 

by the Commission, but declined to subject it to the 

higher level control of compatibility with a concrete application 

of the principles by the Commission since that 

“evidence” of the law was not available to it within a 

certain and brief time. In view of the State aids requirements 

under EU law, it cannot be conceived that the arbitration 

agreement between the Dutch government 

and Demkolec’s parent company did not foresee repayment 

of any State aid which the Commission did not 

subsequently approve of, although the record of the case 

gives no such indication. 

Marketing Displays International v. Van Raalte [43] has the 

distinction of being the only case to date where a EU 

Member State court has annulled an arbitration award. In 

a 2005 decision the Hague Court of Appeal upheld a 

decision of the Hague District Court [44] denying enforcement 

of a foreign (unspecified, but apparently somewhere 

in the US) arbitration award under the public policy 

g r o u n d i n t h e N e w Yo r k C o n v e n t i o n . 

Both MDI and VR produced and sold signage products. 

Under the contract at issue, MDI granted VR a licence to 

produce and to be the exclusive seller of the products of 

a German subsidiary of MDI in Benelux. The contract 

entailed transfer of intellectual property from MDI to VR, 

and it required that VR transfer the entire interest 

to MDI of any improvements which VR developed on the 

intellectual property. This contract was not notified to the 

Commission under Regulation 17, then in force. During 

the arbitration, VR did not raise any EC competition law 

defence. The Court agreed with the court below that the 

contract did not fall within any block exemption during its 

lifetime because of the requirement to transfer back IP 

developments, and that this clause could not be severed. 

As did the court below, the Court of Appeal of the Hague 

conducted a searching legal analysis of the impugned 

contract. It did not need to consider effects on markets 

though to reach its conclusions. 

iv. German Law 

In a decision concerning the enforcement of an arbitral 

award dealing with German competition law [45] the Oberlandesgericht 

Dresden accepted that if a German arbitral 

award offended or neglected to apply German competition 

law (“verletzt oder übergeht”) it must be annulled as 

in violation of public policy. Upon a detailed analysis, the 

Court found this not to obtain in the case before it. The 

requirement that arbitration awards must not neglect to 

apply German competition law would suggest a rather 

searching standard of review is indicated. Under the EU 

law principle of equivalence, German courts would be 

required to apply that same intensive standard of review 

in examining arbitration awards for compatibility with EU 

competition law. 



5

!!!"#$%&'(')#*%# 

Treatment of 

+,-.-/01-#2(3#4)# 

Arbitral Tribunals 

1. Preliminary References to the 

European Court of Justice 

In Almelo [46] the ECJ declared that a Member State court 

reviewing an arbitration award for compatibility with EU 

law is not disentitled or released from the obligation to 

make a preliminary reference under what is now Art. 267 

TFEU by virtue of the fact that the arbitral tribunal was 

authorized to decide according to equitable principles, 

and in its award in fact did so. 

In Nordsee [47] the issue arose whether an arbitral tribunal 

constituted under an arbitration clause in a commercial 

contract could make a preliminary reference to the ECJ. 

The ECJ decided that it could not as it was not “a court 

or tribunal” within the meaning of Art. 267 TFEU, in view 

notably of the lack of State involvement in the decision to 

submit the matter to arbitration. 

On substantially the same reasoning as in Nordsee, 

in Denuit [48] the ECJ confirmed that arbitral tribunals 

constituted under an arbitration clause in a commercial 

contract were not entitled to make preliminary references. 

2. Requirements that Arbitral Tribunals 

raise Antitrust Issues of own Motion 

Where a state will annul or refuse to enforce an arbitral 

award for its failure to apply antitrust law, in effect that state 

is placing the arbitral tribunal under a duty to raise antitrust 

matters of its own motion. This is because, although it 

would be rare for an annulment of an arbitral award to have 

direct personal consequences for an arbitrator, in practice 

arbitrators do endeavour to render enforceable awards. 

Thus if they are sitting in a state which will annul the award 

or if the award is likely to be enforced in a state that will 

refuse such enforcement, then arbitrators will very often 

take the necessary measures to ensure the validity of their 

award. 

Mitsubishi [49] requires arbitrators to determine any antitrust 

issues that a party raises. It contains no requirement that 

courts interfere with arbitration awards in violation of antitrust 

law where the antitrust argument has not been raised 

by a party. By consequence, Mitsubishi places no duty 

upon arbitrators to raise antitrust law of its own motion. 

Eco Swiss [50] , by contrast, results in a duty under EU law 

for arbitrators to apply EU competition law, although 

because of the severely restricted nature of the review of 

arbitration awards by courts of some Member States transposing 

that requirement, it may not be a meaningful duty. 

Under Swiss law, there is no duty on an arbitrator to raise 

antitrust questions of its own motion. This results in the 

Swiss Supreme Court’s determination [51] that antitrust is 

not within the set of norms comprising public policy 

review. On the other hand, if the antitrust law is part of the 

law of the contract, and, it would appear even if it is not, 

Swiss law will not invalidate or refuse to enforce an award 

on the basis that the arbitral tribunal applied antitrust law 

on its own motion [52] . 

!"#$% 

[1] A number of extracts from ICC arbitration awards dealing with 

competition law were published in 14/2 (2003) ICC Bulletin. 

[2] Mitsubishi v. Soler Chrystler-Plymouth, 473 U.S. 614 (USSC, 

1985). 

[3] American Safety Corp. v. J. P. Maguire & Co., 391 F.2d 821 (2nd 

Cir., 1968). 

[4] Mitsubishi, case cit. in note 1. 

[5] Vimar Seguros Reaseguros S.A. v. M/V Sky Reefer, 515 U.S. 528 

(USSC, 1995). 

[6] AT&T Mobility LLC v. Vincent Concepcion et ux., 131 S.Ct. 1740 

(USSC, 2011). See Jeffrey May, The US Supreme Court overturns 

a court of appeal’s decision in the mobile sector holding that 

federal law preempts state law banning class action waiver in 

arbitration agreements (AT&T Mobility/Concepcion), 27 April 

2011, e-Competitions, n° 39906 and David Draigh, Bryan Merryman, 

Eric Grannon, The US Supreme Court holds that consumer 

arbitration clause containing a class action waiver is enforceable 

(AT&T Mobility, Concepcion), 27 April 2011, e-Competitions, n° 

37098. 

[7] Case cit. in note 5 above. 

[8] Green Tree Financial Corp.-Alabama and Green Tree Financial 

Corporation v. Larketta Randolph, 531 U.S. 79 (USSC, 2000). 

[9] In re American Express Merchants’ Litigation, 634 F.3d 187 (2nd 

Cir. 2011). See Jeffrey May,A US Court of Appeals holds that a 

class action waiver provision contained in commercial contracts 

between merchants and charge card issuer/servicer provider was 

unenforceable (American Express), 8 March 2011, e-Competitions, 

n° 36047. 

[10] Kristian and Masterman v. Comcast Corporation, 446 F.3d 25 

(1st Cir. 2006). 

[11] See case cit. in note 42 below. 

[12] 505 F.3d 274 (4th Cir. 2007). See Kristen J. McAhren, The US 

Court of Appeals for the Fourth Circuit holds that parties to an 

arbitration agreement that prohibited joinder of jointly and severally 

liable defendants did not alter any substantive right under the 

Sherman or Clayton Acts (Cotton Yarn Antitrust Litigation), 12 

October 2007, e-Competitions, n° 37106. 

[13] ECJ, June 1st, 1999, Eco Swiss, Case C-126/97, [1999] ECR 

I-3055. 

[14] See for example, for France, decision of 19 May 1993 of the 

Court of Appeal of Paris (Cour d’appel de Paris) in Labinal 

SA v. Mors and Westland Aerospace Ltd, (1993) Rev. Arb. 645; 

for Italy, decision of 21 August 1996 of the Italian Supreme Court 

(Corte di Cassazione) in Telecolor SpA v. Techniocolor SpA (1997), 

47 Giustizia Civile (Giust Civ) I-1373; for England & Wales, ET Plus 

SA and others v. Welter and others [2006] Lloyd’s Rep (Comm) 

251; for Sweden, Section 1 (3) of the Swedish Arbitration Act, 1999 

expressly recognizes the arbitrability of competition law,see decision 

of 29 December 2003 of the Court of Appeal for Western 

Sweden, in Dirland Télécom SA v. Viking Telecom AB,decision T 

4366-02, [2005] E.C.L.R. 432, 438. 

[15] ECJ, October 26th, 2006, Mostaza Claro, Case C-168/05, [2006] 

ECR I-10421. 

[16] Council Directive 93/13/EC of 5 April 1993 on unfair terms in 

consumer contracts ; OJ L 95, 21.4.1993, p. 29–34. 

[17] ECJ, October 6th, 2009, Asturcom Telecomunicaciones, 

Case C-40/08. 



6

[18] ATF 118 II 193, decision of 28 April 1992. 

[19] Louis Dreyfus Négoce SA v. Blystad Shipping & Trading Inc., 252 

F.3d 218 (2nd Cir. 2001). 

[20] JLM Industries, Inc., JLM International, Inc., JLM Industries 

(Europe) BV, JLM Europe BV, and Tolson Holland v. Stolt-Nielsen 

SA, Stolt-Nielsen Transportation Group Ltd., Odfjell ASA, Odfjell 

USA, Inc., Jo Tankers BV, Jo Tankers, Inc., and Tokyo Marine Co. 

Ltd., 387 F.3d 163 (2nd Cir. 2004) rev’d on other matters. 

[21] 559 U.S. (USSC, 2010). See Eric Stock, The US Supreme Court 

shows to be driven by concerns with burdens of US litigation 

process according to recent antitrust decisions (Stolt-Nielsen/ 

AnimalFeeds), 27 April 2010, e-Competitions, n° 35750. 

[22] Maryland District Court, 28 October 2011, AT & T Mobility 

LLC v. Fisher, Slip Copy, 2011 WL 5169349 (D.Md., 2011). 

See Jeffrey May, A US Federal District Court rules against customers’ 

efforts to use arbitration to challenge a merger in the mobile 

sector (AT&T Mobility/Smith), 7 October 2011, e-Competitions, 

n° 39901. 



[25] Eco Swiss, case cit. in note 3 above, at para. 39. 

[26] Swiss Supreme Court, 8 March 2006, 4P.278/2005. See Laurence 

Burger, Constantine Partasides, A Swiss Federal tribunal’s 

decision puts into question the arbitrator’s public policy dilemma 

with regard to competition law, 8 March 2006, e-Competitions, 

n° 1384. 


[28] Baxter v. Abbott Laboratories, 315 F.3d 829 (7th Cir. 2003). 

[29] Eco Swiss, case cit. in note 3 above, at para. 32. 



[32] ECJ, June 4th, 2009, Pannon GSM, Case C-243/08. 

[33] Paris Court of Appeal (Cour d’appel de Paris, 1er Ch. Civ.), 18 

November 2004, Thalès Air Défense v. Euromissile, 2005 (3) Rev. 

Arb. 751. 

[34] ECJ, September 20th, 2001, Courage and Crehan, 

Case C-453/99, [2001] ECR I-6297. 

[35] French Supreme Court (Cour de cassation), 23 March 

2006, SNF v. Cytec Industries BV, 135 JDI (Clunet) 1107. 

See Marie-Charlotte Rouzier, The French Supreme Court rules on 

the criminal rules governing the limitation period in an abuse of 

dominant position case (SNF / Cytec Industries), 19 March 2008, 

e-Competitions, n° 19857. 

[36] Milan Court of Appeal, 5 July 2006, Terra Armata Srl v. Tensacciai 

SpA, reported in 25Bull. ASA 618. 

[37] Florence Court of Appeal, 21 March 2006, Soc Nuovo 

Pignone v. Schlumberger SA. 

[38] Brussel Civil Court (Tribunal de Première Instance de Bruxelles), 

8 March 2007, 2007 (2) Rev. Arb. 303. 

[39] Brussel Court of Appeal (Cour d’appel de Bruxelles, 17e Ch.), 22 

June 2009, 2009 (3) Rev. Arb. 574. 

[40] Düsseldorf Court of Appeals (Oberlandesgericht Düsseldorf), 21 

July 2004, VI-Sch (Kart) 1/02. See Petra Linsmeier, Moritz Lichtenegger, 

The German Higher Regional Court of Dusseldorf holds 

that for foreign arbitration awards to be recognised and enforced 

in Germany they have to comply with fundamental provisions of 

German and European competition law (Regenerative Warmetauscher), 

21 July 2004, e-Competitions, n° 21234. 

[41] Thüringen Court of Appeals (Oberlandesgericht Thüringen), 8 

August 2007, A.G. Co v. Sch. AG, VI Sch (Kart) 01/02, OLGR 

Jena 2008, pp. 162-164. See Stefan Thomas, A German Court 

deals with Art. 81 EC and § 1 ARC as part of the ordre public with 

respect to the enforcement of foreign arbitral awards (Schott), 8 

August 2007, e-Competitions, n° 22882. 

[42] Hague District Court, 9 August 2007, The Netherlands v. B.V. 

Nederlands Elekriciteit Administratiekantoor, case number 

255948/HA ZA 05-3983. 

[43] Hague Court of Appeal, 24 March 2005, Marketing Displays International 

v. Van Raalte. See Tristan Baume, A Dutch Court refuses 

to order the execution of an award adopted by an American arbitration 

panel for breach of a licensing agreement, on the grounds 

that it violates Art. 81.1 EC and is contrary to public policy (Marketing 

Displays International v. VR), 24 March 2005, e-Competitions, 

n° 35. 

[44] Voorzieningenrechter, Rechtbank, The Hague, 27 May 

2004, Yearbook Commercial Arbitration 2006 - Volume XXXI, A. 

J. van den Berg, ed., (Alphen aan den Rijn: Kluwer Law International 

2006) 808. 

[45] Dresden Court of Appeals (Oberlandesgericht Dresden), 20 April 

2005, 11 Sch 01/05. 

[46] ECJ, April 27th, 1994, Commune d’Almelo a. o., Case C-393/92, 

[1994] ECR I-1477. 

[47] ECJ, March 23th, 1982, Nordsee, Case 102/81, [1982] ECR 

1095. 

[48] Case C-125/04, Guy Denuit and Betty Cordenier v. Transorient 

— Mosaïque Voyages et Culture SA [2005] ECR I-923, judgment 

of 27 January 2005. 




[52] Swiss Supreme Court, 30 December 1994, 4P.115/1994. 



7

e-Competitions is the only online resource that provides a current database of summaries of 

antitrust cases from 45 jurisdictions. e-Competitions concentrates on cases summaries in 

reaction to a growing number of publications attempting to cover all aspects of antitrust 

sources in various formats. 

An antitrust case summaries database 

Format 

Each case summary or regulation 

summary contains a case description, 

the provisions implemented and 

a brief comment. All articles are 

linked to the text of the case/regulation 

commented in its original 

language. 

Contents 

6,000 case summaries on courts 

and competition authorities decisions 

and regulations summaries 

from a network of 1,270 antitrust 

experts: enforcers, academics, 

private practice lawyers, or in-house 

counsels. Emphasis is put on 

national Courts' decisions, as 

opposed to competition authorities' 

decisions, as these are less available 

on the Internet. 

Jurisdictions 

55 jurisdictions covered, including 

EU law. This international network 

 

makes it possible to search worldwide 

for any given antitrust issue. 

It provides search results with 

national, foreign and EU case laws, 

which although not binding, constitute 

useful precedents. 

Advisory and Editorial Boards 

e-Competitions draws upon 

highly distinguished editors, all 

leading experts in national or 

international antitrust. Advisory 

Board Members include: Christopher 

Bellamy, David Evans, 

Eleanor Fox, Damien Geradin, Fred 

Jenny, Wouter Wils… 

Partners 

Academics partners: Antitrust 

research centres from leading 

universities write regularly in 

e-Competitions. These articles are 

financed by the law firm’s fees 

acting as Corporate Partners. 

 

 

 

 

 

 

 

 

 

Law firms: Global law firms and 

antitrust niche firms write specifically 

for e-Competitions detailed 

cases summaries. 

Subscribers 

As of 1st June 2012, there were 

22.000 subscribers with an average 

of 35.000 monthly visits to the web 

site. Visits arise from 165 countries, 

the top 4 being the USA, UK, 

Benelux and France (source: Google 

Analytics). Analysis of e-Competitions 

registered users by occupation and 

localization is as follow: 

Private practice lawyers 30 % 

In-house counsels 25 % 

Enforcers 20 % 

Economists 10 % 

Academics 10 % 

Europe 45 % 

America 40 % 

Asia 10 % 

6000 

Articles online 

1270 

Authors 

55 

Jurisdictions 

22000 

Subscribers

2012 Subscriptions 

Review Concurrences 

! 1 year subscription (4 issues) (print version) 425 € 508,30 € 

!" "1 year subscription (4 issues) (electronic version + e-archives) 465 € 474,77 € 

!" 1 year subscription (4 issues) (print & electronic versions + e-archives) 675 € 807,30 € 

!" 1 issue (print version) 140 € 142,94 € 

e-bulletin e-Competitions 

!" 1 year subscription + e-archives 595 € 711,62 € 

Review Concurrences + e-bulletin e-Competitions 

!" 1 year subscription to the review (online version + e-bulletin + e-archives) 775 € 926,90 € 

!" 1 year subscription to the review (print & electronic versions + e-bulletin + e-archives) 875 € 1046,50 € 

Subscriber details 

Name-First name ............................................................................ 

e-mail .................................................................................... 

Institution .................................................................................. 

Street ..................................................................................... 

City....................................................................................... 

Zip Code ....................................... Country ................................... 

VAT number (EU) ........................................................................... 

Send your order to 

Institut de droit de la concurrence 

21 rue de l’Essonne - 45 390 Orville - France l contact: webmaster@concurrences.com 

Subscription information 

Without tax Tax included 

(France only) 

Orders are firm and payments are not refundable. Reception of Concurrences and on-line access to e-Competitions and/or 

Concurrences require full prepayment. Tarifs for 1 user only. Consult us for multi-users licence. For “Terms of use”, 

see www.concurrences.com. 

30 € extra charge for shipping outside France

Arbitration and Antitrust An overview of EU and national case law

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?