The year 2021 marks 36 years since the landmark Mitsubishi ruling – confirming the arbitrability of competition law-based claims, and overturning the then prevailing American Safety decision, which denied the arbitrability of competition law disputes. Mitsubishi was not only a landmark ruling in the U.S., but it also induced a similar change in Europe, firstly with the encouragement of the Commission and then followed by the CJEU in Eco Swiss. However, the development and clarification of EU competition arbitration has been relatively slow and scarce. That is due to the nature of EU competition law, which has a lot of open terminology, the lack of arbitration mentioned in the legislation, and often the unwillingness of CJEU to clarify important concepts due to lack of information. Also, arbitration proceedings are confidential by nature – which historically has been one of the main arguments against arbitrability of competition disputes – therefore, the development and clarification of EU competition arbitration has only come up in limited circumstances, mostly in the recognition and enforcement phase of the arbitral award or when the losing party has challenged the award.
The current position is that competition law is an arbitrable subject-matter in the EU. That position is mostly based on the application of Articles 101 and 102 TFEU, which mostly arise in arbitration proceedings. However, when stepping out of the confined boundaries of those Articles, and considering whether Article 106 TFEU on exclusive right; Articles 107-108 TFEU on EU state aid; EUMR on concentrations or follow-on damages actions based on EU competition law infringements are also arbitrable, the answer is more ambiguous. In theory, the answer is yes, subject to limitations of the Commission’s exclusive competence, but in practice, the arbitrability of those EU competition law issues poses many challenges on arbitrators. This thesis explores the jurisdictional issues and limitations on arbitrators’ to arbitrate EU competition rules, related claims and follow-on action damages.
