Originally from The Impact of EU Law on Commercial Arbitration

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INTRODUCTION

On 26 November 2014, the European Parliament and the Council adopted Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.  According to the new EU instrument, recital nr. 3, “the full effectiveness of Articles 101 and 102 TFEU and in particular the practical effect of the prohibitions laid down therein, requires that anyone (…) can claim compensation before national courts for the harm caused to them by an infringement of those provisions”; the Directive provides a set of substantive and procedural rules aimed at ensuring the effectiveness of the right to compensation.
Claims for damages caused by the violation of competition law may be brought to court; they can also be tackled by alternative dispute resolution mechanisms such as – among others – arbitration.  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty,  which was adopted to modernized the rules governing the enforcement of articles 81 and 82 (current art. 101, 102 TJEU) does not mention arbitration at all; Directive 2014/104 does on two occasions.  In this way it indorses the interest of analyzing the relationship between the EU regimen for private enforcement and arbitration proceedings.
After an introduction to the Directive our paper will turn to claims for damages before arbitral tribunals focusing in the interface between arbitration and the Directive, addressing on the one hand the impact the latter may have upon arbitration in terms of a regulatory regime; on the other, the scope and meaning of the Directive’s explicit reference to arbitration. 
A caveat is needed already at this point. Arbitration is indisputably the most prominent alternative dispute resolution mechanism in international commercial relations. That arbitrators can – as a rule – adjudicate damage claims in the field of competition law is no longer contested in the EU;  the arbitrability of such claims is supported by national case law on the annulment of/refusal to enforce an arbitral award;  it has also been affirmed by arbitrators themselves.  However, how damage claims linked to the infringements of competition law are handled is difficult to know. The great majority of antitrust questions arise in commercial arbitration, where the awards are usually not published. In 2016, while accepting the likelihood of arbitral awards adjudicating “follow-on” damages claims based upon violations of EU (or Member States) competition law, academics acknowledged their inability to identify any public record of them.  Confidentiality as a general feature of commercial arbitration, felt more acutely in cases of antitrust claims, renders any public discussion of the awards implausible – as a side result, the reliability of what has been published has to be called into question.  This has been our experience as well: database searches have provided only a few extracts of ICC awards where the usual antitrust issue at stake was the arbitrability of competition law in general, or the nullity of a contract clause;  difficulties pertaining to the claim for damages were either not raised, or not published. As a consequence, some remarks in this presentation can only be general, i.e. not specific to the issue of claims for damages.