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bitrator’s ability to raise the issue of competition law of his own motion. The existing English law position is, a tribunal fails to deal with critical issue in order to determine a dispute may commit a serious irregularity which probably exposes the award being challenged if the tribunal has its seat in England and applying the EC member state law but failed to handle the possible invalidity of an agreement according to Article 82(1) EC. [85] The reason is the irregularity is contradictory to the natural justice rule. Hence, an award made by an arbitrator in England may be set aside for serious irregularity when competition law issues intentionally or unintentionally omit to be raised by the parties. [86]

On the contrary, an award may apply the law wrongly even appropriate competition law issues do address. Besides, in most jurisdictions, the chance to have judicial review on the findings of law is very restricted. In spite of no award will be enforced when a transaction is contravened the EC antitrust law [87] , it does not mean award enforcement will be denied when EC antitrust law is applied wrongly. [88]

8.2 Practical Constraints

Bowsher (2005) commented the unacceptable ambit of the concourse between arbitration and competition law is the asymmetry of the result of arbitral error. [89] Other than the application of competition law as mandatory rule, an arbitral tribunal also obliges to consider the substantive and procedural law of the disputed contract as both are crucial to decide on the competition law point, as well as the law of place of enforcement since the primary goal of the tribunal is to produce an effective and enforceable award in particular jurisdictions. [90] In short, a tribunal, in making its arbitration award, must take account of the potential effect of the anti-competition contract or conduct. [91]

In practice, not all the arbitrators are lawyer and not all the lawyers are familiar with all the potential public policy issues which may arise in an international case especially when parties intentionally covered it up or negligently failed to raise the issue. [92] We have to admit and understand the practice of prominent lawyer arbitrators in the EU does not make them acquire comprehensive knowledge of competition law, it explains the limited ability of a tribunal to raise the competition issue when such issue indeed outside his own knowledge. [93]

Since a tribunal obliges to produce an effective and enforceable award which will free from subsequent trimming down because of regulatory action , it usually raises the competition law issues of its own motion when it is failed to raise by parties for whatever reasons. However, the practical restriction is the detail of EC competition law is not realized by all the arbitrators, especially when the issues themselves give no concern to any anti-competition object, or the issues are not the axis thus only gives rise to economic issues under the proper analysis. [94]

8.3 Practical Implication from Non-EU States

Switzerland, a non-EU state, is suspected by EC commission as an asylum for committing anti-competition behavior. [95] Since EC competition law is being doubted if it formed part of Swiss public policy, arbitrators in Switzerland are not required to apply competition law while Swiss tribunals are not obliged to consider EC competition law when the dispute is su