Arbitration of antitrust claims in the United States and Europe

Today, most countries have relinquished their exclusive jurisdiction over antitrust claims and instead permit arbitrators to also decide such claims. While the expansion of arbitral competence can be seen as a global trend, it has not been an entirely uniform trend. The United States was the first country to start down the road of expanding the scope of arbitrator competence to encompass important statutory claims, including antritrust claims. In allowing these claims to go to arbitration, the U.S. Supreme Court originally suggested that the public policy interests implicated in antitrust arbitration can be safeguarded during award review, but that dicta has proven largely illusory in practice. Meanwhile, other countries, particularly those with a civil law tradition in Europe, have been more circumspect and more circumscribed in allowing arbitration of antitrust claims in the first place, and more active in reviewing awards to ensure adherence with statutory objectives. While there is extensive commentary regarding the risks of allowing arbitration of mandatory claims, our focus in this Essay is instead on the narrower issue of the effect that different national approaches to arbitrability and award review have on competing national antitrust policies. In practictal terms, for many disputes more than one antitrust regime can be applied because the extraterritorial reach of national antitrust laws overlaps in international transactions. Our thesis is that, when faced with such a conflict of laws question about the application of European versus American antitrust law, arbitrators will be inclined to systematically prefer European law since they know that failure to do so is more likely to result in an unenforceable award, and arbitrators are charged with an obligation to render an enforceable award. The effects of this preference may not be enormous given demonstrted convergence between U.S. and EU antitrust law. Moveover, in practice, it is likely that skilled arbitrators craft awards that are valid under both legal regimes. But some important areas remain in which U.S. and European antitrust laws that would necessarily produce different outcomes in particular cases. Keeping in mind that upwards of an estimated 90% of international contracts include arbitration clauses, this Essay hypotehsizes that private arbitrators are de facto but systematically resolving claims involving issues of impass in US-EU in antitrust law negotations in favor the EU position.