Performance as a Remedy: Specific Issues Relating to Competition - Chapter 15 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Siegfried H. Elsing is a Partner in the Düsseldorf office of Orrick Hölters & Elsing, is a member of the firm’s International Arbitration and Corporate Groups. He also served as a member of Orrick’s Executive Committee. Mr. Elsing co-founded the prominent German law firm Hölters & Elsing in 1989 and oversaw the firm’s merger with Orrick in 2009. He now guides Orrick, Hölters & Elsing, Orrick’ German arm, both as a foundation member and senior partner for Germany. Mr. Elsing is admitted as an attorney both in Germany and New York. He graduated from Münster Law School (Dr jur) and holds an LLM from Yale Law School. He is a frequent lecturer and author on the topics of international arbitration and comparative law and is honorary professor at Heinrich-Heine-University, Faculty of Law, Düsseldorf, where he teaches international commercial arbitration and international civil procedure. Mr. Elsing is a member of numerous leading arbitral institutions and international and domestic associations. He is a member of the Board of Directors of the American Arbitration Association (AAA) and was a former Chair of the Mediation Committee 2007/2008 of the International Bar Association (IBA).
In recent years, the EU Commission not only accepted structural undertakings but also behavioural commitments from merging parties.1 The structural remedies typically impose on the notifying party an obligation to divest itself of a particular business so as to maintain an acceptable level of competition. Usually, structural remedies have to be implemented within a very short period of time. In contrast, behavioural commitments typically comprise long-term obligations. Furthermore, they may encompass a wide variety of topics, depending on the concrete anti-competitive effects of the merger. In many cases, the merging parties pledge to grant access to their essential facilities (especially to their newly consolidated networks) on a non-discriminatory basis to third parties. In other cases, the merging parties introduce non-compete covenants.2 The behavioural commitments typically take the form of undertakings (“Auflagen”) rather than conditions (“auflösende oder aufschiebende Bedingungen”) of the clearance decisions. Consequently, they have to be monitored in the post-merger period. In cases of breach, injunctions may be imposed. Therefore, the EU Commission’s clearance decisions make reference to arbitral tribunals or sole arbitrators that have to perform this task.3 In fact, the EU Commission has developed considerable practice in incorporating arbitration clauses into behavioural remedy packages as an integral part of its merger clearance decisions.