EU Competition Arbitration
| Jurisdiction | United Kingdom |
| Pages | 1255-1297 |
| Author | Gordon Blanke |
29
EU Competition Arbitration
Gordon Blanke
I. Introduction 29.01
A. General Scope of EU Competition
Arbitration 29.02
B. What is Arbitration? 29.05
C. Modernization and EU
Competition Arbitration 29.10
II. Some Ontological Preliminaries 29.11
A. Context 29.12
1. Ordinary EU competition
arbitrations 29.13
2. EU commitment arbitrations 29.15
3. EU competition- related
arbitrations 29.18
B. Antitrust Arbitrability 29.20
1. Arbitrability of Article 101 TFEU 29.23
2. Arbitrability of Article 102 TFEU 29.30
3. Arbitrability of behavioural
commitments under Articles 101
and 102 TFEU and in EU
merger control 29.32
4. Arbitrability of questions relating
to EU State aids and public
undertakings 29.40
C. e Arbitration Agreement 29.45
1. Scope and construction 29.46
2. Enforceability 29.50
III. Ordinary EU Competition
Arbitrations 29.53
A. Scope of Ordinary EU Competition
Arbitrations 29.54
B. e Arbitrator’s Mandate 29.55
1. Basis for the application of
EU competition law 29.57
2. Investigations by the arbitrator 29.59
3. Production of evidence 29.62
4. e arbitrator’s decision- making
powers 29.64
5. e arbitrator’s potential liability 29.68
C. Procedural Conduct of EU
Competition Arbitrations 29.71
1. e arbitrator’s ex ocio duty
to raise competition law issues 29.72
2. e status of previous EU
Commission or NCA
decisions 29.74
3. e status of parallel
proceedings 29.77
4. e arbitrator’s cooperation
with the EU Commission and/ or
the competent NCA 29.81
D. Supervisory C ourt Review of EU
Competition Law Awards 29.84
1. Supervisory court review in
Europe 29.85
2. e ‘minimalist’ and ‘maximalist’
schools of review 29.88
3. Consequences of
non- compliance 29.92
IV. EU Commitment Arbitrations 29.94
A. Scope of EU Commitment
Arbitrations 29.97
1. Commitment arbitrations in
EU merger control 29.99
2. Commitment arbitrations under
Article 9 of Regulation 1/ 2003 29.102
B. Procedural Conduct of EU
Commitment Arbitrations 29.104
V. Other EU Competition- Related
Arbitrations 29.107
A. Arbitration of Questions Relating
to the EU State Aid Regime 29.108
B. Arbitration of Questions Relating
to Public Undertakings and
Exclusive or Special Rights 29.112
VI. Conclusion 29.115
I. Introduction
is chapter endeavours to provide an overview of the role of arbitration as an alternative
means of dispute resolution in the private enforcement of EU competition law.1 In doing
1 For a summary, see G Blanke, ‘EU Competition Arbitration: A Reliable Forum for Private Enforcement’ (July
2019) CPI Antitrust Chronicle 1– 9.
29.01
1256
so, it focuses exclusively on the use of arbitration within the context of EU competition law
and does not delve into the wider realms of antitrust arbitration in relation to the private en-
forcement of, for example, various Member State competition laws2 or indeed US antitrust
law,3 which is widely recognized as being at the origin of antitrust arbitration internation-
ally.4 at said, deliberate recourse to national competition or antitrust law regimes might be
had for illustrative purposes or to draw instructive analogies to facilitate a practical under-
standing of EU competition arbitration in context.
A. General Scope of EU Competition Arbitration
Competition arbitration is of some relevance to a number of areas of EU competition law.5 In
particular, it has come to play a role in:
• the private enforcement of the EU competition law provisions, that is Articles 101 and
102 TFEU;6
• the private enforcement of behavioural commitments in EU merger control, under
commitment decisions adopted pursuant to Article 9 of Regulation 1/ 2003 and
under former exemption decisions pursuant to Article 81(3) EC, now Article 101(3)
TFEU;7 and
• the private adjudication of select questions of the EU State aid regime under Article 107
TFEU, as well as public undertakings and exclusive or special rights within the meaning
of Article 106 TFEU.
Each of these areas of EU competition arbitration will be discussed in further detail later in
this chapter.
For the avoidance of doubt, this chapter will primarily discuss the practical procedural
aspects of EU competition arbitration and seek to highlight relevant discrepancies with
the procedural practice prevailing before the Member State courts. Before doing so, it
will provide a brief introduction to arbitration as a private dispute resolution mechanism
commonly used as an alternative to litigation. is will assist in a proper understanding
of the practical use of arbitration for private enforcement in the context of EU competi-
tion law.
Finally, the considerations made in this chapter apply to EU competition arbitration in the
European Economic Area (‘EEA’) mutatis mutandis, unless expressly stated otherwise.
2 For further discussions, see the ‘Arbitration and ADR’ section of the various country reports in G Blanke and
R Nazzini (eds), International Competition Litigation: A Multi- jurisdictional Handbook (Kluwer Law International
2012). For the UK example, see G Blanke, ‘e Application of EU Law to Arbitration in the UK: A Study on
Practice and Procedure’ (2014) 25(1) European Business Law Review 1- 66.
3 For a detailed treatment of US antitrust law in arbitration, see Part III in G Blanke and P Landolt (eds), EU and
US Antitrust Arbitration: A Handbook for Practitioners (Kluwer Law International 2011) 1293– 760.
4 See the famous Mitsubishi decision of the US Supreme Court, Mitsubishi Motors Corp v Soler Chrysler-
Plymouth, Inc, 473 US 614 (1985), which is considered the fons origo of modern antitrust arbitrability, even though
there are selective examples of competition arbitration in Europe long before then, see eg arbitration practice in
Germany. For further detail on antitrust arbitrability, see paras 29.20– 29.44.
5 G Blanke, ‘Entrusting Antitrust Issues to Arbitration— Some Personal oughts and Considerations’ (2016)
32(2) Arbitration International 275– 85.
6 Also referred to as ‘ordinary competition arbitrations’, see paras 29.13– 29.14.
7 Also referred to as ‘commitment arbitrations’, see paras 29.15– 29.17.
29.02
29.03
29.04
1257
B. What is Arbitration?8
Arbitration is a private dispute resolution mechanism based on a contractual agreement be-
tween the parties, that is, the arbitration agreement.9 Usually, apart from being private, arbi-
tration proceedings are strictly condential, thus protecting arbitrating parties from adverse
publicity, which— in competition arbitration more specically— may prevent an adverse im-
pact on consumer behaviour and hence an unforeseen distortion of existing trade patterns.
Depending on the parties’ agreement, the proceedings may be institutional10 or ad hoc.11
Most subject matters of the law can be arbitrated and are hence ‘arbitrable’.12 Depending on the
subject matter of the arbitration, the parties are free to choose an arbitrator or an arbitral tri-
bunal with the requisite expertise and relevant experience in the industry sector concerned. is
may be of particular importance in EU competition arbitration to the extent that an accurate
denition of the product and geographic markets as well as the evaluation of economic evidence
may require some form of pre- experience and expertise.
Arbitral tribunals are generally understood to be delocalized, ie they do not possess a forum.
Accordingly, in the conduct of the proceedings, arbitral tribunals are only bound by the relevant
arbitration laws of the seat of the arbitration (to the extent that these do not conict with the
chosen arbitration rules) as well as mandatory provisions of law that are of transnational appli-
cation, including various competition or antitrust law provisions.13
Arbitral tribunals render arbitral awards, ie private judgments that are enforceable in
more than 160 countries worldwide14 in accordance with the terms of the New York
Convention.15,16 Awards cannot be appealed on the merits and can only be refused enforce-
ment or set aside on grounds of undue process, including violations of mandatory laws and/
or public policy.17 Tribunals are widely recognized to be subject to a best eorts commitment
to render an enforceable award, which may include compliance with certain competition law
8 For major arbitration works providing exhaustive guidance on the subject matter, see GB Born, International
Commercial Arbitration (Kluwer Law International 2020); J- F Poudret and S Besson, Comparative Law of
International Arbitration (Sweet & Maxwell 2007); and JDM Lew, LA Mistelis, and SM Kröll, Comparative
International Commercial Arbitration (Kluwer Law International 2003).
9 Or the submission agreement, provided the parties decide to resort to arbitration ex post, aer a dispute has
arisen between them.
10 at is, governed by arbitration rules ordained by a previously agreed and designated arbitration body, such
as eg the International Chamber of Commerce (‘ICC’) International Court of Arbitration, or the London Court of
International Arbitration (‘LCIA’).
11 at is, take place outside any preordained institutional framework. Even then, the UNCITRAL Rules of
Arbitration may provide a full set of ad hoc rules for procedural guidance in the conduct of the proceedings.
12 On the arbitrability of EU competition law more specically, see para 29.20 et seq.
13 In the EU competition law context more specically, see para 29.85.
14 Including the current twenty- seven EU Member States and other leading industrial nations in the world. For
a full list of membership, see: <http:// www.uncitral.org/ uncitral/ en/ uncitral_ texts/ arbitration/ NYConvention.
html>. For the impact of Brexit on competition arbitrations seated in the United Kingdom, which exited the EU
with eect from 1 February 2020, see G Blanke, ‘Brexit and Private Competition Law Enforcement under the
Arbitration Act 1996: Taking Stock (Part III)’ (2020) 13(4) Global Competition Litigation Review 180– 89; and G
Blanke, ‘Brexit and Private Competition Law Enforcement under the Arbitration Act 1996: Taking Stock (Part I)’
(2016) 9(4) Global Competition Litigation Review 154– 60. Also RH Kreindler, P Gilbert, and R Zimbron, ‘Impact
of Brexit of UK Competition Litigation and Arbitration’ (2016) 33(7) Journal of International Arbitration 521– 40.
15 Convention on the Recognition and Enforcement of foreign arbitral awards, done at New York, on 10
June 1958.
16 Or other bilateral or multilateral enforcement instruments, such as the so- called Geneva Convention, none
of them, however, as wide in scope and as inuential as the New York Convention.
17 On supervisory court practice where faced with awards that violate EU competition law, see paras
29.84– 29.93.
29.05
29.06
29.07
29.08
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