Consensual settlement of competition disputes in China: a call for conditional arbitrability

Abstract

ABSTRACT The current reform of China’s Arbitration Law is aimed at making the country a more attractive seat for international commercial arbitration and at encouraging consensual dispute settlement to supplement the heavy workload of the courts. At the same time, due to the lack of certainty as to the arbitrability of antitrust disputes, the competition-related arguments may effectively stall or delay arbitration proceedings or create the risks of setting aside of arbitral awards on public policy grounds. The paper addresses the aforementioned problem by advancing a call for conditional arbitrability of antitrust disputes in China, which will require clarification of the applicable legal standards and detailed procedural guidance by the Supreme People’s Court that would instruct the arbitrators and the parties about applying competition rules in the context of contractual disputes. This policy proposal is grounded on the analysis of the divergent judicial approaches to arbitrability of competition-related issues developed by the Chinese judiciary.