COMPETITION • EUROPEAN LAW • PROCEDURE
Arbitration in competition law is controversial. The competition rules are a matter of public policy, both in the EU and in the individual Member States, and national legal systems limit, if they do not totally exclude, the possibility of arbitration of disputes that involve public policy issues. It has been held that if an arbitration tribunal were to find an infringement of competition law, it would have to declare itself incompetent because it could not “impose sanctions for the violations it finds”, unless it restricted itself to drawing the civil consequences of the anticompetitive conduct in question.
Beyond the question of the appropriateness of arbitration for matters of competition law, the question arises of the arbitrator’s right not to apply the competition rules when the dispute brought falls within their scope. Even if they are appointed to rule ex aequo et bono, arbitrators must apply EU competition law, just as they must in principle ensure compliance with mandatory rules, provided, of course, that they are applicable to the dispute. The Court of Justice has thus held that a national court hearing an action for annulment of an arbitration award is required to annul the award if it considers it contrary to Article 101 TFEU, a rule of international public policy, when its internal rules of procedure require it to take account of national public policy rules. However, arbitrators cannot be equated with either a national authority or a national court and are therefore precluded from making a reference to the Court of Justice for a preliminary ruling. On the other hand, a court to which one of the parties has referred an action for annulment of the arbitral award may refer a question to the Court for a preliminary ruling.