Public Policy and Breach of Competition Law in International Arbitration: A Competition Law Practitioner's Viewpoint
In its March 2016 Opinion in the Genentech case, Advocate General Wathelet raised the complex question of the standard of review that should be applied by domestic courts when asked to set aside or declare unenforceable arbitral awards on the ground that they breach EU competition rules, which in the EU legal order have a public policy nature. Although the Court of Justice of the EU eventually did not take position on this question in its subsequent judgment, Advocate General Wathelet’s Opinion brought once again the complex interface between competition law, arbitration and public policy to the fore.
The objective of this paper is to discuss this interface from a competition law practitioner’s standpoint. The existing literature on the relationship between competition law, arbitration and public policy has been essentially authored by arbitration experts or at least academics or practitioners whose primary area of expertise lies in arbitration. As a result, the existing literature tends to treat competition law in a fairly abstract manner and often fails to sufficiently take into account its objectives, intricacies and the intensely factual analysis its enforcement requires. As a competition law practitioner involved in arbitral proceedings, I attempt to give a competition-law oriented perspective of the questions raised by the interface between arbitration and public policy.