Arbitrating Antitrust Claims: From Suspicion to Trust
67 Pages Posted: 4 Sep 2015 Last revised: 15 Jun 2017
Date Written: July 10, 2015
This Article examines the evolving role of international commercial arbitration in the enforcement of domestic antitrust laws. It first explores how antitrust claims and issues arise in international arbitrations. It then describes three phases in the evolution of domestic courts’ attitude toward the adjudication of antitrust claims by international arbitral tribunals. Initially, national courts—like courts of the United States prior to the U.S. Supreme Court’s pathmarking 1985 decision in Mitsubishi v. Soler—were suspicious of private adjudication of antitrust claims, cognizant of the public values implicated by antitrust law. A remarkable but unnoticed transformation has since ensued. Now, the national courts of most developed economies accept (and even mandate) adjudication of antitrust claims by private international arbitral tribunals. This transformation may be predictive of future acceptance of international arbitral tribunals as trustworthy forums for dispute resolution of other “public” subject matters. This Article concludes by suggesting how international arbitrators should discharge their new role and how domestic courts might police it.
Keywords: international arbitration, antitrust, competition law, Mitsubishi, arbitrator's obligation, private enforcement
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