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] Second, it probably provides a speedier and cost effective mean to resolve the issue. [74] Last, it would consistent with the public policy to encourage private enforcement in deterring anti-competitive conducts. [75]

In practice, not all competition law issues can fall within the range of an arbitration especially when it raised by the effect of a series of agreements amongst different parties. For this reason, each case must consider if the competition law issues are arbitrable as well as if it fails within the ambit of the arbitration agreement. [76]

Certain factors are suggested by arbitration practitioners to consider whether EC competition law should be applied in international proceedings. [77] First, if the selected law by the parties is of a member state. Second, if the seat of arbitration is situated in a member state in which an award may set aside before the national court of that state. Third, what is the likelihood of an award’s enforceability in a member state. [78]

There is no doubt on the obligation of a tribunal that where the law of the contract is of an EC member state, then EC competition law must apply as part of the law. However, when arbitration with seat outside the EC, it is for the tribunal to determine if EC competition law should be applied after considering the impact on the enforceability and validity of the award if it failed to do so. [79]

The Duty of an Arbitral Tribunal / Arbitrator to Apply Competition Law to the Dispute

Extent of the Duty

In English law, no clear authority to support an arbitral tribunal with its seat in the EU must raise competition law issue of its own motion. Yet, a tribunal with its seat in England is highly likely to apply same procedure like a national court. [80] Considered a tribunal requires to officiating care when exercising its jurisdiction, it is fair to conclude when explicit and persuasive evidence of illegality is received by the tribunal, it obliges to apply a competition law prohibition of its own motion. However, EC law may affect the position when only limited relevant information can be assessed by the tribunal, in this case, wrong and unfair decision may probably be made by relying on the incomplete information. [81]

The case Eco Swiss China Time v Benetton International [82] illustrated on the interaction between the competition law and arbitration. The question before the European Court of Justice (“ECJ”) was, whether a member state court being asked to enforce an arbitration award and decided the competition law issues on its own motion. The ECJ held that a member state must consider EC competition law in the enforcement of an arbitration award. The rationale is, albeit national competition law ought not to be regarded as a matter of public policy in every member state, the rules of EC competition law are mandatory rules of EC member state law. [83] Some commentators opposed to the unfair approach of Eco Swiss in resolving a fundamentally commercial dispute. Moreover, no matter what policy issues being involved, it would be inappropriate to put Benetton in a better position because of a resentful and incompetent refutation by utilizing the procedural measure with purpose to avoid the eventual award being enforced, or merely an attempt to smother up the infringement of competition law. [84]

Nothing is revealed in Eco Swiss concerning the ar