Originally from the Journal of Damages in International Arbitration

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INTRODUCTION

The relationship between antitrust law and arbitration has traditionally not been without complication. As a “creature that owes its existence to the will of the parties alone,”  arbitration stands in natural tension with the regulatory objective of antitrust law, whose “fundamental provision[s]” are “essential […] for the functioning of the internal market” and thus “a matter of public policy within the meaning of the New York Convention.” ,  Moreover, the basic premise and justification of arbitration, namely that arbitration clauses are entered into as part of an informed and voluntary bargain, can be difficult to reconcile with the economic reality of their role in markets where dominant suppliers or the members of a cartel impose arbitration clauses on their customers in the standard terms of supply contracts.  

The following article will analyze the approach to antitrust damages claims in arbitration in three steps, each of which describes a possible way of how to design the relationship between arbitration and antitrust law: I) non-arbitrability of antitrust claims, II) ex post control of the arbitration award, and III) ex ante control of arbitration agreements, before IV) evaluating the different approaches. Being confined to antitrust damages claims and arbitration, the article will not analyze whether the arbitration agreement as such may be an infringement of antitrust laws, rendering it invalid and unenforceable.