ARBITRABILITY OF COMPETITION LAW (ANTITRUST) DISPUTES

Abstract

The expansion of arbitral competence in handling competition law/antitrust matters can be seen as a global trend, however not an entirely uniform one. In certain states the legitimate interest of the state in controlling or preventing monopolies and other market practices is readily appreciated. The main test for each arbitral tribunal is if the competition law/antitrust dispute is arbitrable under the applicable law. The arbitrability determines whether certain types of disputes can be submitted to arbitration or a contrario whether they fall within the exclusive jurisdiction of the courts. There are nevertheless situations when the existence of mandatory court jurisdiction impacts arbitrability. This is so when considerations of international public policy dictate the mandatory jurisdiction of the court. Historically, courts would not enforce of contractual arbitration clauses covering competition law/antitrust disputes, even if the parties had specifically agreed to arbitrate this kind of matters. Fortunately, the underlying premise that competition law, respectively the antitrust issues are per se non arbitrable is no longer universally accepted. The theory and practice of the courts both in the European Union and the United States, at least in dicta, has proven that in the context of international commercial arbitration “second look” is possible. In this respect the jurisprudence of the Republic of Macedonia does not have specific indications as for the arbitrability of the competition law and antitrust in particular. However, it is important to note that there is a tendency worldwide of increasing the role of international commercial arbitration in the enforcement of the domestic competition law..