John Pheasant - Hogan & Hartson - Taking competition into a new arena
Arbitration in competition disputes has swiftly become a commercial reality. John Pheasant warns that companies used to fending off competition watchdogs will need to learn new tricks
October 25, 2006 at 08:03 PM
6 minute read
There has been much discussion of the European Commission's Green Paper on damages for infringement of EC antitrust law. The Green Paper launched a debate designed to encourage and even facilitate private actions in national courts. The Commission and the Office of Fair Trading (OFT) have indicated that, to prioritise the use of their own limited resources, complainants will be encouraged, in appropriate cases, to resolve their disputes privately, whether through action in national courts, arbitration or other forms of dispute resolution.
Appropriate cases will include those in which there is a contractual dispute giving rise to competition law arguments in respect of which the jurisprudence of the European Court of Justice (ECJ) and/or guidelines of the Commission and OFT provide enough guidance for judges and arbitrators.
The number of commercial disputes in which arbitrators in the UK are asked to adjudicate on competition disputes, whether raised by the claimant or the defendant, is growing and will continue to grow. This trend reflects developments in the US where, as recently as the mid-1980s, it was not fully clear whether US anti-trust disputes could be resolved in arbitration. Several US courts had previously held that, because of the public nature of antitrust laws, the resolution of antitrust disputes by a private arbitration violated public policy.
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