Public Policy and Breach of Competition Law in International Arbitration: A Competition Law Practitioner's Viewpoint

32 Pages Posted: 31 May 2016 Last revised: 13 Oct 2016

See all articles by Damien Geradin

Damien Geradin

EUCLID Law; Tilburg Law & Economics Center (TILEC); University College London - Faculty of Laws

Date Written: May 29, 2016

Abstract

In its March 2016 Opinion in the Genentech case, Advocate General Wathelet raised the complex question of the standard of review that should be applied by domestic courts when asked to set aside or declare unenforceable arbitral awards on the ground that they breach EU competition rules, which in the EU legal order have a public policy nature. Although the Court of Justice of the EU eventually did not take position on this question in its subsequent judgment, Advocate General Wathelet’s Opinion brought once again the complex interface between competition law, arbitration and public policy to the fore.

The objective of this paper is to discuss this interface from a competition law practitioner’s standpoint. The existing literature on the relationship between competition law, arbitration and public policy has been essentially authored by arbitration experts or at least academics or practitioners whose primary area of expertise lies in arbitration. As a result, the existing literature tends to treat competition law in a fairly abstract manner and often fails to sufficiently take into account its objectives, intricacies and the intensely factual analysis its enforcement requires. As a competition law practitioner involved in arbitral proceedings, I attempt to give a competition-law oriented perspective of the questions raised by the interface between arbitration and public policy.

Keywords: Competition Law, Arbitration, Public Policy, New York Convention, Arbitral Awards, Standard of Review

JEL Classification: K12, K21, K41, L40

Suggested Citation

Geradin, Damien, Public Policy and Breach of Competition Law in International Arbitration: A Competition Law Practitioner's Viewpoint (May 29, 2016). TILEC Discussion Paper No. 2016-029. Available at SSRN: https://ssrn.com/abstract=2786370 or http://dx.doi.org/10.2139/ssrn.2786370

Damien Geradin (Contact Author)

EUCLID Law ( email )

Brussels
Belgium

Tilburg Law & Economics Center (TILEC)

Tilburg, 5000 LE
Netherlands

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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