英国仲裁法律作业帮做 [12]
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论文字数:6743论文编号:org201409271716527367语种:英语 English地区:英国价格:免费论文
关键词:商业仲裁竞争法Commercial LawInternational Law EssayCompetition Law替代性争端
摘要:本文是一篇英国仲裁法律作业,主要分析新的竞争法是否会影响仲裁,新的竞争法将会影响仲裁和替代性争端解决服务吗?是否需要发现和实施一些预防措施,以确保一个人不会违反竞争法。
itrators tend to adopt a flexible and graduated approach when dealing with unduly restrictive law like competition law. [107] The application of competition law by arbitrators on their own motion concerning a matter of public policy may entirely change the position of invalidity and severance. [108] Probably, most of the arbitrators would find it unnecessary to raise the competition law issues when it cannot be made without exhaustive analysis on the legal, factual and economic aspects. [109]
Arguably, striking balance between the anti-competitive effects of a restraint and the pro-competitive benefits involves a variety of analysis on the policy issues which exceeded the interests of both parties. In short, it creates both practical and legal difficulties in applying the competition law even assistance is available from the national competition authority since there is no way for the arbitrators to acquire reliable indication on the extensiveness of the practice and its effects. [110]
In Switzerland, arbitrators find themselves are prohibited from encouraging or requiring the parties to seek direction from the national competition authority because it would contradict to the duty of privacy of arbitrator to the parties. [111] Critics argued arbitrators are not regulators thus have no wider public issues should be placed before them and their primary obligations are towards the parties, thus arbitrators are not obliged to apply competition law in the same particular way of DG Competition Law. [112] Notably, this approach may give little weight on the wider public interest which eventually would result in an overall strike on competition policy upon the economy. [113]
In Nordenfelt v Maxim Nordenfelt Guns and Ammunition [114] , the court laid down the doctrine on restraint of trade. Justification will only available when the restriction is reasonable by reference to the interests of the both parties as well as the public interests. However, it is absolutely arguable on what constitutes the public interest. Further, the flexible approach of arbitration in relation to the admission of evidence would inevitably give advantages to the public interest argument. [115]
Conclusion
Baker (2004) concluded in his keynote address that antitrust claim is arbitrable and should be required by statute provided three conditions can be satisfied. First, the parties agree to arbitrate their disputes by way of arbitration. Second, sufficient discovery can be provided under the arbitration clauses or the relevant arbitration rules. Third, minimum threshold of independence and qualification can be met by the arbitration panel. [116]
While arbitration is well recognized in its capability to determine on competition law issue, other ADR procedures are also proved themselves be more effective than the form of arbitration in terms of cost-efficiency, maintaining the business relationship and ensuring a competitive negotiated outcome. [117]
Fairly speaking, the unique characteristics of competition law give rise to a new approach in the conventional powers and ex officio duties of arbitrators. Further, the features of EC competition law developed specific powers and duties for international arbitrators while the available literature on the matter is limited. [118] Attention must pay to the disparity between the competence and duty of arbitrators to apply compet
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