Abstract
On May 21st 2015, the Court of Justice of the European Union in CDC Hydrogen Peroxide decided whether the application of jurisdiction clauses in actions for damages impedes the effective enforcement of EU competition law. The CJ stayed silent, however, on how to treat arbitration clauses, which similarly to jurisdiction clauses, exclude a default court jurisdiction. The question of how to interpret arbitration agreements in the event of an antitrust violation and subsequent actions for damages remains thus unanswered. In light of the foreseen increase in private enforcement of EU competition law, this problem gains significance. This is because arbitration agreements may be frequently used to govern commercial relationships between antitrust infringers and their injured direct contractors. Against this background, the paper aims to analyse the consequences brought about by the existence of arbitration clauses in the event of actions for antitrust damages. It seeks to answer two questions: whether the claims for antitrust damages can be per se arbitrated, and whether the general arbitration clauses used by the parties to regulate their commercial relations cover the actions for antitrust damages. In order to address these problems, the papers draws attention to the CJ’s interpretation of jurisdiction clauses and the Polish experience of interpreting the scope of arbitration agreements in the field of unfair competition law. The paper reaches the conclusion that neither the arbitration nor EU law prevent arbitrating actions for antitrust damages. Whether a specific arbitration agreement covers actions for antitrust damages or not can be analyzed only with reference to the will of the parties interpreted under applicable national law. It is believed, however, that there are many reasons to adopt an arbitration-friendly interpretation of vague arbitration agreements.
Highlights
Competition law and international arbitration have been seen for many years as being worlds apArticle Arbitration has its origins in private law and materialises the will of parties to depart from the public court jurisdiction to benefit from the adjudication by a mutually agreed arbitrator
The arbitrability of EU competition law holds true for claims for antitrust damages
This demonstrates the general compatibility of arbitrating claims for antitrust damages with the principle of effectiveness in EU competition law
Summary
Competition law and international arbitration have been seen for many years as being worlds apArticle Arbitration has its origins in private law and materialises the will of parties to depart from the public court jurisdiction to benefit from the adjudication by a mutually agreed arbitrator. This has only enhanced doubts about how to treat arbitration agreements and whether to apply the reasoning of the CJ by analogy to arbitration clauses Against this background, the paper aims to shed more light on the interpretation of arbitration agreements in the event of actions taken for antitrust damages. The question of whether a specific arbitration agreement covers actions for antitrust damages or not can only be analysed with reference to the will of the parties interpreted under applicable national law (ii). The article contributes to the current debate on the arbitrability of EU competition law (Driessen-Reilly, 2015; Geradin & Villano, 2016; Komninos, 2011; Mourre, 2011; Nazzini, 2008) by rebutting some misconceptions about arbitrating the actions for antitrust damages. The paper concludes and gives some guidance on how to construct arbitration clauses (Part VI)
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