Arbitrability of Anti-trust/Competition Law Issues - Common Law

Abstract

BY WAY of introduction to this paper, I can do no better than to quote the opening remarks of Hon. Andrew Rogers QC (formerly Chief Justice of the Commercial division of the Supreme Court of New South Wales, Australia) to the second Lord Goff Lecture delivered in Hong Kong in 1991: > In the last decade, at least in the industrialized countries, courts adhering to the common law system have enlarged the permissible field of arbitrability beyond all recognition. The Supreme Court of the United States has led the field. Is the world of arbitration putting at risk the adherence of a large part of its constituency particularly in the developing world? Where is the line to be drawn? Do we have it right? Later in his lecture, Mr Rogers noted that: > It is appropriate to point out that it is not only developing countries that are uncomfortable with the developments in the common law countries. The civil law approach is much more restrained. General issues regarding the arbitrability of non-contractual disputes are outside the scope of this paper, which is intended to deal more specifically with the problems faced by arbitrators and national courts alike (subject to principles of common law), when faced with the question of the arbitrability of what are commonly known as anti-trust or competition law issues. Tortious disputes aside, the vast majority of arbitrations arise out of an agreement between the parties to refer to arbitration disputes between them relating to their substantive contract. A problem occurs when one party seeks to introduce into the dispute the mandatory competition laws of a relevant jurisdiction (which I explain below). Can the arbitrator consider the merits of a dispute, which involve the determination of certain competition law issues (which may only have an indirect relationship to the contract) …