The "Minimalist" and "Maximalist" Approach to Reviewing Competition Law Awards: A Never-Ending Saga - SIAR 2007-2
Gordon Blanke is an associate and competition law specialist with the International Arbitration Group of SJ Berwin LLP, London. Gordon is a member of the Chartered Institute of Arbitrators in London, the London Court of International Arbitration, the Swiss Arbitration Association, the German Institution of Arbitration, the ICC Commission on Competition, the former ICC Task Force for Arbitrating Competition Law Issues, the ICC UK National Committee and the International Bar Association. The views expressed in the following case article are the author’s views alone.
Originally from: Stockholm International Arbitration Review
THE "MINIMALIST" AND "MAXIMALIST" APPROACH TO REVIEWING COMPETITION LAW AWARDS: A NEVER-ENDING SAGA
On 8 March 2007, the Brussels Court of First Instance (the "Brussels Court") annulled two arbitral awards that according to its findings, were in breach of Article 81 of the EC Treaty by giving effect to an anticompetitive agreement. More specifically, the Brussels Court found that the net outcome of the awards produced a paradoxical situation whereby CYTEC Industrie ("CYTEC"), the defendant in the proceedings, received damages in excess of the amount of profits it would have made had the original agreement been fully performed, whilst the claimant, SNF SAS ("SNF") was ordered to pay more in damages to CYTEC than it would have paid under the ordinary performance of the agreement.
The significance of this judgment resides in the contribution it makes to the sensitive discourse of the domestic review of arbitration awards that involve EC competition law issues. Whereas the orthodox view is that arbitration awards should not be subject to any review on the merits by the national judiciaries during setting-aside or enforcement proceedings, in the recent past, some domestic courts have become somewhat more interventionist when EC competition law issues were perceived relevant to the outcome of the dispute at hand. Depending on the importance individual judges attribute to the arbitrating parties’ compliance with EC competition law, they either adopt what has become known as the "minimalist" or the "maximalist" approach to reviewing arbitral awards. Pursuant to the minimalist approach, a national judge will only verify whether the tribunal gave consideration to the relevant competition law issues at all, without, however, undertaking a review of the merits of the tribunal’s analysis.