This chapter will first reflect back more than three decades on the genesis of arbitration and competition matters and the seminal Mitsubishi case, and then how that case was so remarkably forward thinking. The chapter will then touch at the conclusion on some practical issues that frequently arise in a competition case today and how Mitsubishi is still influencing with vigor. As will be apparent, that organic decision continues to be of great significance in the handling of complex arbitrations, including and especially those dealing with antitrust or competition issues. And as also will become apparent, the policy and rationale behind that extraordinary case indeed has relevance in today’s struggle between a global and a more national view to international trade.
In Mitsubishi Motors v. Soler, 473 US 614 (1985), the U.S. Supreme Court led the worldwide migration to the recognition of arbitrability of competition disputes at least in an international situation, assuming the parties have agreed to arbitrate these issues. Up till that time most, if not all, jurisdictions around the globe considered these antitrust competition matters to be strictly for the courts. To grasp the incredible impact of the decision, one should first consider the policy which the Court embraced to come to its conclusion that international competition cases are arbitrable.
The Supreme Court in Mitsubishi began by noting the “healthy regard for the federal policy favoring arbitration” as well as, in respect to international matters, the growth of American business and trade will not be encouraged if “we insist on a parochial concept that all disputes must be resolved under our laws and in our courts,” 473 US at 629.