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bject to Swiss substantive law even EC market may affect. [96] As a result, an award will not be abrogated even arbitrators in Switzerland failed to apply EC competition law of their own motion. [97]

From an arbitration perspective, many foreseeable difficulties arise when arbitration is exercised outside the EU which concerns the mandatory application of EU competition law since the agreement has anti-competition effects within EU. [98] For instance, first, why and how can a non-EC tribunal apply EC law of its own motion when the tribunal has no relevant information and understanding of the law; second, without assistance or training, to what extent, an international arbitrator is required to acquire sufficient knowledge as to the mandatory rules and public policy issues for his consideration. [99] Considered countries which introduced competition law may try to achieve different objectives, the aims of particular competition law, for instance, EC competition law, may not easily used or realized by arbitrators in different jurisdictions [100] probably because they all come from different cultural backgrounds.

How should a National Competition Authority govern or support the Application of Competition Law within Private Dispute Resolutions

When arbitrations involve a latently critical issue of competition law, there could be an inherent inequality where one party attempts to assert the existence of an infringement but the other party takes a contrary view. [101] The reason is, the party alleges the non-existence of infringement could only recourse to the limited or non-existent domestic appellate remedies while the other party could easily make an appeal to the National Competition Authority. [102]

In practice, tribunals oblige to discuss with the parties when the dispute involving competition law issues that how the issues can be resolved. When the tribunal wants to consult and seek policy guidance from the third party national competition authority, it must not do so unless there is consent from both parties that certain points and requests are allowed to make by the tribunal from the national competition authority. [103] Without agreement from the parties, arbitrators may infringe their contractual duties to resolve all questions of law in private and the duty of confidentiality. It eventually may give rise to a severe irregularity since the parties entitle to know the complete consultation process between the arbitrator and the third party national competition authority that how an award can be affected with such consultation. [104]

The inconsistency of the duty of the arbitrators to integrate the role of law enforcement and decision making encourages the reluctance of arbitrators to seek guidance from the national competition authority. [105] Currently, there is no basis to compel any reluctant party to participate in any consultation process from the national competition authority. Therefore, it will be appropriate for the arbitrators to remind the parties regarding the chance of the award being attacked via the national competition authority when the result of the competition law issue is controversial. [106]

How should an Arbitral Tribunal Apply Competition Law to the Dispute

In reality, especially in the international arbitrations in which only little or no chance to take a second look before the enforcement proceedings, arb