英语论文网

void as the result of infringement by prohibited an anti-competitive agreement [62] and whether it should subject to individual exemption [63] .

Historically, the European Commission (EU Commission) mistrusted and suspected the misapplication of arbitration may facilitate clandestine activity. Until recent years, an open approach can be seen from the Directorate General for Competition (DG Competition) which started to use arbitration in enforcing the petition rules of the Community Treaties for ensure the competition within the EU market will not twisted and the markets can be operated efficiently. Nevertheless, the discreet approach of EU Commission can still reflect from EC competition law as to the Block Exemption which concerns maritime transportation and liner shipping companies. [64]

In the use of private dispute resolutions, including arbitration and ADR, the difficulties are, first, in a private dispute, whether the tribunal capable to receive evidence or submission from the competition enforcement authority; second, whether the tribunal or arbitrator or other private dispute resolver delegated with authority to enforce an award; third, whether the parties are truly agreed to the process and if not, how will their disagreement affect the due process rights. [65]

The Arbitrability of the Competition Law

There is considerable discussion about the arbitrability of the competition law, yet no clear decision is made directly on this issue in English law. [66] Indeed, the live debate is now shifted to examine the proper extent of competition disputes, namely, whether it can be resolved in arbitration when arbitrators are required to consider the question of competition law. In American Safety Equipment Corp v JP Maguire & Co, [67] the US Supreme Court stated anti-trust violation may potentially affect millions of people and inflict astounding economic loss thus a claim under such law is not merely a private matter which can be resolved privately between the parties. Hence, the Congress must intend the matter to be resolved in the courts rather than elsewhere.

The traditional view is now altered. In Mitsubishi Motors Corp v Soler Chrysler Plymouth, [68] the US Supreme Court changed its stance by making decision to establish the arbitrability of competition issues. The court held a Japanese arbitral tribunal obliged to consider on the anti-trust law of the US and the international public policy when dealing with a contract which expressly governed by Swiss law. The decision gives rise to the “second look” doctrine owing to a reserved right under New York Convention. [69] Each signatory country of the convention may refuse award enforcement when recognition or enforcement of the award would contrary to the public policy of that signatory country. [70]

The exercise of the “second look” doctrine has practical difficulty. Generally speaking, an international arbitration is intentionally limited in scope for judicial interference. In practice, plenty awards will be enforced without assistance from judicial process and the chance for substantive legal review is so confined that it is almost non-existent in many jurisdictions. [71]

Brown (2007) illustrated the reason why private actions should be allowed when involving possible competition law infringement. [72] First, it permits efficient and extensive use of specialist resources. [73