Post-Hearing Issues In International Arbitration - Chapter 6 - The “Minimalist” and “Maximalist” Approach to Reviewing Competition Law Awards: A Never- Ending Saga Revisted or the Middle Way at Last?
Gordon Blanke is a Counsel with the International Arbitration Group of Baker & McKenzie.Habib Al Mulla & Co, Dubai, UAE. He has wideranging experience in all types of international commercial arbitration, having acted as arbitrator and advising counsel under most leading institutional arbitration rules (including the ICC, LCIA, DIAC, ADCCAC and JAMS arbitration rules) and ad hoc in arbitrations seated in the US, Europe and the Middle East in relation to a variety of industry sectors, including private equity, banking and finance, international franchising, project development, construction/real estate etc. In his younger years, Gordon also served a stage with the ICC International Court of Arbitration in Paris, France. Gordon has relevant antitrust law experience, having worked with various international law firms and advised clients and the UAE Ministry of the Economy on discrete issues of antitrust of relevance in the UAE. He has further served a training period with the late Merger Task Force of the Directorate-General of Competition of the European Commission in Brussels, Belgium, and has trained with the European Court of First Instance and the European Court of Justice in Luxembourg. Gordon is a former member of the late ICC Task Force for Arbitrating Competition Law Issues and co-author of the ICC Best Practice Note on the European Commission Acting as Amicus Curiae in International Arbitration Proceedings. Gordon is a regular contributor to a number of international arbitration journals and has published and co-edited several books on international arbitration and antitrust law including in particular The Use and Utility of International Arbitration in EC Commission Merger Remedies (Europa Law Publishing, 2006) and EU and US Antitrust Arbitration: A Handbook for Practitioners (Kluwer Law International, 2011). Gordon is on the editorial board of Arbitration, the Journal of the Chartered Institute of Arbitrators, and of International Commercial Arbitration Review, published in association with the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry (CCI), Moscow. He is co-editor of the Global Competition Litigation Review, including its Arbitration and ADR section, and book review editor of European Competition Law Review. Gordon is a regular speaker at conferences and seminars on international arbitration worldwide. Gordon is fluent in English, German, French and Spanish.
The present chapter revisits an article previously published in the Stockholm International Arbitration Review.1 That article was originally published on the occasion of the then recent ruling of the Brussels Court of First Instance in the long-standing arbitration dispute between SNF and CYTEC, which had given rise to a number of contradictory supervisory court rulings in Belgium and France in relation to the appropriate review of awards involving EU competition law. Despite having been set aside by a later ruling of the Brussels Court of Cassation, the rulings of the Brussels Court of First Instance remains key in this context as one of the first rulings on the subject-matter that have paved a “Middle Way” to the review of EU competition law awards, thus attempting to articulate a viable and workable compromise between the “minimalist” and “maximalist” schools of review. More recent developments before other supervisory courts in the European Union that have adopted versions of the Middle Way have demonstrated that the Middle Way is indeed the most suitable way forward in the review of EU competition law awards. Against this background, the article as published in its original form remains as topical as ever and deserves publication verbatim in the present collection of essays on post-hearing issues in international arbitration.
The "Minimalist" and "Maximalist" Approach to Reviewing Competition Law Awards: A Never Ending Saga Revisted or the Middle Way at Last?
II. The Factual Background to the Brussels Court's Judgment in La Snf C/ La Cytec Industrie
A. The Tribunal's Findings
B. The French Exequatur Proceedings
III. The Brussels Court's Judgment In La Snf C/ La Cytec Industrie
A. Preliminary Considerations On Public Policy
B. The Brussels Court's Role in the Review Process
1. The Brussels Court's review of the Tribunal's application of Arts. 81 and 82 EC
IV. The Brussels Court's Approach In Light of the ECJ's Judgment in Eco Swiss
A. The Brussels Court's Mandate
B. A Literal Reading of Eco Swiss in Context
V. Further Support for the Substantive Review of Competition Law Awards
A. From French Legal Doctrine
B. From other Member State Courts
C. From Across the Atlantic
D. Consensus on the Need for Proper Reasoning of Competition Law Awards
E. The Compelling Case for a Substantive Review by Member State Courts
VII. Post-Scriptum: the Supervisory Court Review of EU Competition Awards Revisited
A. The Middle Way as the Way Forward in the Review of EU Competition Law Awards
B. The Brussels Court of Appeal's Judgment in Cytec v. SNF
C. The Continuing Significance of a Literal Reading of Eco Swiss
D. The Continuing Support for the Substantive Review of EU Competition Law Awards
1. From Various Legal Doctrine
2. From Member State Supervisory Court Practice across the EU
E. The Isolated Position of the French Supervisory Courts
F. Conclusion: Convergence Towards the Middle Way