Olga Sendetska ‘Arbitrating Antitrust Damages Claims: Access to Arbitration’ (2018) Journal of International Arbitration 35(3) 357

In 2015, the Court of Justice of the European Union (CJEU, Court) delivered a judgment in CDC v. Akzo Nobel finding that broadly worded jurisdiction clauses do not extend to competition-related tortious damages claims. Even though the Court did not address arbitration clauses, a spillover into this area may nonetheless take place. This is reflected in how, both prior to and after the CDC judgment, Member States’ courts have reached conflicting conclusions when dealing with broad arbitration clauses. This article, which can be found here, reviews these developments as follows: The introduction reviews the relationship between arbitration and private competition enforcement in the EU. The arbitrability of competition law issues is now generally acknowledged in the EU. Nowadays, arbitral tribunals do not even discuss the issue of antitrust arbitrability in their awards. Academic commentators focus on discussing whether certain contractual formulas amount to valid consent to arbitrating EU competition law matters. Arbitral tribunals are able to deal with matters such…

James Segan ‘Arbitration Clauses and Competition Law’ (2018) Journal of European Competition Law & Practice 9(7) 423

This paper, available here,  takes a practical take on how arbitration clauses should be construed when trying to determine whether a competition claim is arbitrable. It argues that the current EU approach to these clauses risks creating circumvention efforts, whereby competition law claims are ‘dressed up’ as contractual claims to circumvent the perceived effect of the CDC decision. A more predictable and sustainable approach would be the ordinary approach of focusing on the objective measure of connection between tortious competition law complaints and the subject matter of the agreement containing the arbitration clause. The paper is structured as follows: A first section reviews prior debates on the interplay between competition and arbitration. Historically, the literature focused on three topics, namely: (i) whether competition law claims are arbitrable at all; (ii) whether arbitral tribunals are under a duty to rule upon competition law claims raised by the parties or to raise such issues ex officio, and (iii) whether and in what ways a court,…

Barbara Warwas ‘The State of Research on Arbitration and EU Law: Quo Vadis European Arbitration?´ (2016) EUI Working Paper LAW 2016/23

This is not so much a paper as a book – or at least an extended report that can be found here. The goal of this paper is to provide a systematic literature review of studies on arbitration in recent decades, with a focus on emerging developments in arbitration and EU. Since it is 109 pages long, I will provide only a high-level overview, with detailed discussions of those topics that are of greater interest to me. Academic studies of arbitration have proliferated in recent decades, partially as a function of the professionalization of international arbitration practice. This abundant arbitration scholarship follows two streams. On the one hand, one can come across research largely revolving around the practicalities of arbitration whose main objective is to reveal how arbitration works in practice. On the other hand, one can find literature on the interplay between arbitration and law. This second type of literature is often more critical than studies on the practice…