The Eco-Swiss Case and International Arbitration

Abstract

THE LANDMARK case of Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. ,1 raised and decided, at least as a matter of the law of the United States, the question of the arbitrability of antitrust claims. In the judgment of the European Court of Justice in the Eco Swiss case, appropriately named, one can hear an echo of Mitsubishi : ‘Anticompetitive conduct is subject to arbitration’. This article does not attempt to present any detailed analysis of the proceedings in the European Court of Justice or in the Dutch courts where the arbitral award was challenged. These matters are ably discussed by Professor Allan Philip in the paper referred to below.2 The purpose of this article is rather to discuss the lessons that are found in the Eco Swiss judgment and the Mitsubishi case for the conduct of international commercial arbitrations in respect to which anticompetitive or antitrust laws are implicated. Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc. , was decided in 1985 by a five to three vote of the Justices of the Supreme Court. In 1986 the Brooklyn Law School held a Symposium on ‘The Future of Private International Arbitration: Beyond Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc.’ (hereinafter ‘The Future of Private International Arbitration’). At that Symposium, I presented a discussion ‘From Vynior Case to Mitsubishi: The Future of Arbitration and Public Law’.3 The decision of the Supreme Court was a watershed in international commercial arbitration. For the first time, our highest court conferred upon a private system of dispute resolution — international commercial arbitration — not only the power but the duty to adjudicate civil antitrust disputes. In my presentation to the Brooklyn Law School Symposium, I summarized the Court's decision: > The Court rebutted the argument that the public interest involved in the private enforcement of …