Should the Cobbler Stick to His Last? Antitrust Law and Arbitration

Antitrust law was born within the public law paradigm. Its justification seems to be based on the power to limit private activity for the public interest. On that basis, the application of antitrust law has customarily been entrusted to judicial courts or administrative authorities, usually specialized state agencies.

The emergence of antitrust-focused arbitration tribunals—usually composed of lawyers engaged in private practice (in commercial law or contracts) without any state appointment or authorization—is striking. They decide on the problems and possible impact that potentially anticompetitive behavior could cause to markets and consumers, despite the fact that neither consumers, nor competitors, nor the state participate in the proceedings. This has generated divergent reactions. Antitrust specialists, who see their territory threatened, are astonished, but they confront the enthusiasm of arbitration experts, who see their area of practice expanding.

The use of antitrust arbitration is not just an increasingly common topic of discussion, but a real change in antitrust practice. Even though the arbitrability of antitrust claims has become almost universally accepted, there are still some issues for which the correct legal answer is not clear, such as the standard of review that courts should follow when an arbitration decision is appealed, or the grounds upon which an award may be set aside or its enforcement paused. This paper analyzes those topics in the context of international arbitration, considering each in relation to the public interest and in context of the incentives and externalities that could be generated in each.