英语论文网

t, an arbitration awards can be easily enforced internationally when compared to court judgments. [51] However, by reference to the England and Walsh position, the attributes of arbitration are being challenged in the context of commercial arbitration when competition law applies.

First and foremost, the parties cannot be said to own the process under the heading of party autonomy as the adoption of arbitration is not a product of the free choice of the party when parties can only meet the requirement of a block exemption regulation by giving consent to arbitration. [52]

Second, the element of privacy and confidentiality is weakened since litigation about the application of competition law must serve on the Office of Fair Trading. [53] Furthermore, a substantial number of awards are published anonymously in which the publishers have no duty to ask consent from the parties. [54] In UK, appeals to the arbitral procedure are usually heard in private but the judge may publish the judgment unless an order is granted to the parties on the contrary. [55]

Third, the primary purpose of arbitration is the enforceability of a granted award, viz, the arbitrators obliges to ensure the granted award is complied with the mandatory rules of the lex arbitri. [56] In general, an award in the international context should be enforceable pursuant to the New York Convention but subject to two exceptions that the enforcement of an award may be refused. The exceptions are, when enforcement and recognition of the granted award in which the subject matter of the disparity is incapable of settlement by arbitration under the law of that country, or it would be contrary to the public policy of that country. [57] Public policy refers to the domestic notion of public policy of the separate convention state which will be determined by the court of that convention state. [58]

Fourth, the availability and scope of judicial supervision on legal ground is limited or non-existent. Considered the core requirement of an effective arbitration is to reach an award with finality. The process of judicial review of domestic awards and procedures are usually limited only to a restricted basis, for example, serious irregularity is found which affected the proceedings, tribunal or award. However, almost all of international arbitrations have no possibility to challenge on the question of law from the award. [59]

Fifth, tribunals have duty to raise issues of illegality of its own motion but they also owe contractual duties to the parties. The tribunals face a dilemma since they may in breach of their obligations by taking action to invalidate the agreement between the parties. However, if not to do so, the tribunals may fail to discharge its duty to the parties and probably would commit an acute irregularity by failing to solve a critical issue which may affect the outcome of the dispute. [60] Bowsher (2005) opined the arbitral tribunals should adopt a similar approach used by the English court in relation to the raising of illegality of its own motion under the four suggestions illustrated by Devlin J. in Edler v Auerbach [61] .

The Junction of Competition Law and Private Dispute Resolutions

Nowadays, competition law issues could be raised and included in an agreement by the provision of compulsory arbitration clause. The particular issues are whether the contract in question is