Damages Directive Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules regulating actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, OJ L.
I NTRODUCTION
Starting from the substantive aspects of the application of EU competition law in international commercial arbitration, it will be examined whether antitrust disputes can be validly arbitrated (II.A.), how EU competition law is applied to the content of the filed case. before an arbitral tribunal (II.B.) and how this legal area could act as an obstacle to the validity, recognition and enforcement of arbitral awards due to public policy (II.C.). Moving to the procedural aspects of the relationship between international commercial arbitration and EU competition law, we will examine in what ways arbitral tribunals can establish and develop a dialogue on issues relating to the interpretation and application of EU competition rules, both with the EU judiciary ( III. A.), as well as with the European Commission and national competition authorities of EU member states (III.B.).
S UBSTANTIVE A SPECTS OF THE A PPLICATION OF EU C OMPETITION L AW
A. The arbitrability of EU competition law disputes Arbitrability
A.1. Types of EU competition law disputes in arbitral proceedings
Following the above, it is assumed that harmful claims can be included in the scope of the arbitration clause concluded by the parties. This position rests on the primordial role of the parties' autonomy and expressed common will to refer their disputes to arbitral proceedings.
A.2. The question of arbitrability
1b(i) 39 of the UNCITRAL Model Law on International Commercial Arbitration40, on the law that regulates arbitration in the recognition and enforcement proceedings, as well as art. 2b of the UNCITRAL Model Law41 regarding the same question in setting aside annulment proceedings.
A.3. The answer to arbitrability
To return to the arbitrariness of requirements under EU competition rules, it must be emphasized that in light of the modernization of EU competition law introduced by reg. 1/2003 and its underlying rationale, the positive attitude to the arbitrariness of the antitrust disputes should cover the entire art.
B. The applicable law in arbitral proceedings
In this regard, arbitrators are expected to take into account both the expressed will of the parties, as provided for in the arbitration clause, as well as the legitimate expectations65 of the parties during the arbitration procedure. It is also described in the manner in which the prevailing foreign binding rules are applied by the arbitral tribunal, as will be further analyzed below.
B.1. When the lex contractus is the law of an EU Member State
B.1.a. The principle of primacy and direct effect of EU law
Regarding the duty of national courts to safeguard the effectiveness of EU competition rules, see CJEU, judgment of 24 January 1991, Alsthom Atlantique SA v. Therefore, the granting of EU rights by EU competition law can advocate the application of EU competition rules in proceedings in international commercial arbitration.
B.1.b. Overriding mandatory rules of the lex contractus
Remaining within the limits of the definition of the prevailing mandatory norms, the EU competition rules define their own scope in an imperative manner. The fulfillment of specific criteria for the application of EU competition law is carefully considered in the case of arbitration forums outside the borders of the EU.
B.2. When the lex contractus is not the law of an EU Member State
119 Για μια πιο λεπτομερή ανάλυση του ρόλου του lex mercatoria στις διεθνείς συναλλαγές, βλ. Χαράλαμπος ΠΑΜΠΟΥΚΗΣ, Lex mercatoria ως εφαρμοστέο δίκαιο στις διεθνείς συμβατικές ενοχές: συμβολή στη γενική θεωρία του δικαίου των διεθνών συναλλαγών, ed. Για λεπτομερή ανάλυση του ρόλου των ξένων κυρίαρχων υποχρεωτικών κανόνων εντός της μεθοδολογικής δομής του ιδιωτικού διεθνούς δικαίου, βλ.
B.2.a. The lex contractus permitting the application of foreign
It is generally accepted that international arbitrators have the option, but are not required, to raise the issue of third country coercive rules sua sponte.128 This supports the a minori ad maius argument based on how national courts apply foreign dominant coercive norms with acknowledges to the parties the burden of referring to them and requesting their use.129.
B.2.b. The lex contractus not permitting the application of foreign
It should be noted that the author suggests a nuanced discretion of the arbitrators' obligation to refer to transnational public policy, depending on whether they are competent to decide ex aequo et bono, on the absence of a choice of the lex contract by the parties or on the basis of an express choice of applicable law by the parties. He considers it more relevant to consider the application of translational public policy in the first two cases, while he considers the choice of the parties based on the lex contractus as limiting a possible discretionary power of the arbitrators to refer to transnational public policy .
C. EU competition law as a ground of public policy
C.1. From ex officio application to the creation of a European public policy
At this point it should be mentioned that grounds of public policy are usually addressed ex officio in the domestic legal systems of most member states of the EU.158 Peterbroek strengthens the space left open by Van Schijndel to national courts for the ex officio application of EU law, by presenting a solid argument in its favor based on the effective judicial protection obtained through the preliminary reference procedure. Following Eco Swiss, the importance of the EU competition rules as fundamental to the objectives of the EU, is reiterated in the subsequent jurisprudence of the CJEU, in Courage162 and Manfredi163, which allows us to refer to the origin of ' a European public policy164.
C.2. The extent of the judicial review on grounds of public policy
The CJUE has not shown such reluctance in the case of public policy exceptions to arbitral decisions in the field of EU consumer law.191. However, it goes against the very essence of public order and the rule of law to have different standards of review.
A. The dialogue between the arbitral tribunals and EU courts
Having dealt with the main issues of a substantive nature that may arise in connection with the relationship between the international commercial arbitration and the EU competition law, the focus is now concentrated on the development of the procedural dialogue between these two areas of law, both in a legal as well as at the administrative level. First, we will examine the relationship between the arbitration courts and the EU courts (III.A.), i.e.
A.1. The role of the CJEU
A.1.a. Nordsee as a leading case
This is linked to the importance of the duty of sincere cooperation, which is at the very core of the idea of the preliminary reference procedure, and reflects the basis of an inherent constitutional balance between the EU and the Member States. It is also linked to EU law's general system of remedies.
A.1.b. The possibility of reversing Nordsee
The above-mentioned developments in the jurisprudence of the European Court of Justice indicate a timid and gradual departure from Nordsee with regard to the decision of an arbitral tribunal as a court competent to submit preliminary references to the European Court of Justice through a different prioritization and more expansive interpretation of the criteria therein. . In the case of EU competition law disputes, this use of arbitration could have been explicitly provided for in the articles of the Damages Directive and then implemented by Member States in their national legislation.
A.2. The role of the national courts
But the EU legislator chose differently, limiting the reference to arbitration in the damage directive's preamble and some technical provisions on suspension of proceedings and limitation periods in the case of consensual dispute resolution. This seems more in line with the aim of preserving the balance introduced and established by the implementation of the Nordsee jurisprudence, which concerns the constitutional basis of the administration of justice in the EU.222 Nevertheless, Member States could choose to legislate specifically on the use of arbitration in so far as antitrust disputes are concerned, and therefore entertain the application of the results in Ascendi and Merck Canada in international commercial arbitration.
A.2.a. Preliminary references from the national courts
This outcome presupposes and requires the execution of "an effective review of the award in question"224, which in itself includes the possibility of sending a preliminary reference to the CJEU for reasons of interpretation,225 and embraces the inclusion of the EU- competition rules in the . The review of the arbitral award in the light of the EU competition rules constitutes the "antidote" for the absence of preliminary references directly from the arbitral tribunals to the CJEU.227.
A.2.b. Anti-suit Injunctions: A way out and a way back in
The decision in West Tankers has been criticized for promoting the objectives of Regulation 44/2001 to the detriment of the effectiveness of international arbitration,237 before the issue of counterclaims reached the ECJ again in Gazprom238. The modernization of EU Competition law has significantly strengthened the role of NCAs244.
B. The dialogue between the arbitral tribunals and the European
This will help to grasp the full range of the procedural aspects of the cooperation within the ECN regarding the application of EU competition rules in international commercial arbitration. 247 Joint statement by the Council and the Commission on how the network of competition authorities works.
B.1. The role of the European Commission
This fundamental difference between national courts and arbitral tribunals could hamper presumptions of analogy to the extent that the provisions whose analogous application is claimed do not attribute importance to the arbitral role of national courts – something common to arbitral proceedings – but to the more specific position of courts in the legal order of member states and their relationship with other branches of government and European institutions.
B.1.a. The possibility of a European Commission interference
This requirement for prior consent could significantly limit the powers of the European Commission in its supervision of the application of EU competition rules.259. These restrictions concern the requirement of prior consent for the involvement of the European Commission and the reassurance of compliance by the parties.
B.1.b. The communication of arbitral awards to the
The European Commission is an institution alien to their legal order, as their national courts have no obligation towards it in the procedures for the admission of arbitral awards. Naturally, it is easy to assume that the parties are not expected to inform the European Commission of the issuance of such a propio motu.
B.1.c. Conflicting Decisions and Stay of Proceedings
Against this approach it is suggested that the independence of the arbitral tribunals of the. In addition, the assessment of the arbitral tribunal with a view to future or simultaneous proceedings before the European Commission is at a certain point speculative, as the arbitrators must undertake a prognostic exercise277.
B.2. The role of the NCAs
The arguments presented above against the analogous application of the provisions on the intervention of the European Commission in arbitration can also be cited here. This is reinforced by the fact that the Damages Directive makes it a breach of the EU.
C ONCLUSION
However, it seems to fuel loyalty in the fundamental foundations of both international commercial arbitration and the organization of the EU judiciary, i.e. the latter principles also seem to determine the relationship between international commercial arbitration and the members of the ECN . as guidance for the lack of specific EU-derived provisions on establishing direct communications between them.
R EFERENCES
A. Legislation
Joint statement by the Council and the Commission on how the network of.
B. Table of Cases
Judgment of 5 March 1996, Brasserie du pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame and Others, Joined sake C-46/93 and C-48/93, ECLI:EU:C:1996: 79.
C. Bibliography
LANDOLT Phillip, “Chapter 2: Arbitration Clauses and Competition Law”, in: BLANKE Gordon, LANDOLT Phillip (ed.), EU and US Antitrust Arbitration: A Practitioner's Guide, Kluwer Law International, The Hague, 2011. Martin, BLACKABY Nigel, PARTASIDES Constantine, “Review of International Arbitration”, in: BLACKABY Nigel, PARTASIDES Constantine, REDFERN Alan, HUNTER J.