A Comparative Analysis Of Resolving Antitrust Disputethrough International Commercial Arbitration

With the increasing popularity of both the international commercial arbitrationand the anti-trust law, the arbitrability of anti-trust issues and how to recognize andenforce arbitration award have acquired more attention from not only the acedamyand the legal practitioners. As the pioneer in field of anti-trust law, the United Statesrecognized the arbitrability of anti-trust dispute for the first time in the Motors V.Soler Chrysler-Plymouth case. Like the United States, although the Europeans Unionhas never expressly recognized the arbitrability of anti-trust dispute, it could be foundin its verdict that the European Union holds a positive opinion towards this issue.Subject to the recognition of the arbitrability of anti-trust dispute, the UnitedStates and the European Union separately developed its own featured reviewmechanism of such arbitration awards at the recognition and enforcement stage. Thereview mechanisms not only ensure the feasibility of arbitrating anti-trust dispute, butalso guarantee the effective enforce of the anti-trust law.Subject to the recognition of the arbitrability of anti-trust dispute, the UnitedStates and the European Union separately developed its own featured reviewmechanism of such arbitration awards at the recognition and enforcement stage. Thereview mechanisms not only ensure the feasibility of arbitrating anti-trust dispute, butalso guarantee the effective enforce of the anti-trust law. In China, there is neither statue nor precedent regarding the arbitrability ofanti-trust dispute or review of the arbitration including anti-trust dispute at therecognition and enforcement stage. Considering the trend of recognizing thearbitrability of anti-trust dispute leaded by the United States and the European Unionin the world, it is really necessary that China starts research on this issue amongacademy and the legal practitioners in order to figure out the proper attitude towardsthe arbitrability of anti-trust dispute and design a suitable review mechanism ofinternational commercial arbitration awards regarding anti-trust dispute for China.This dissertation is going to focus on the arbitrability of the anti-trust dispute andhow to review the international arbitration awards regarding anti-trust dispute.Through comparing the quite developed opinion and practices in the United Statesand the European Union, some suggestion concerning China’s attitude towards thearbitrability of anti-trust dispute and designation of the review mechanism of suchdispute.Generally speaking, this dissertation shall include four parts:The first part will introduce the present development of arbitrating antitrustdispute in international commercial arbitration. Focus will be given to the historicalevaluation of the arbitrability of antitrust dispute and the review of arbitration awardon such issue in the United States and the European Union. Meanwhile, this part willanalyze deeply not only the values of the international commercial arbitration and theantitrust law, but also the conflict between these two values. In this way, the reasonwhy the academy and the legal practitioners have a long lasting dispute on whetherthe antitrust issues could be arbitrated though international commercial arbitration.The second part is going to discuss the arbitrability of antitrust issue thoroughly.By studying the precedents on this issue in the United States and the European Union,this part will illuminate the legitimacy and reasonability of recognizing thearbitrability of the antitrust issue.The third part will mainly discuss the review of the international commercialarbitration award involving antitrust issue. Through studying the precedent andpractice in the United States and the European Union, analysis will focus on the necessity of reviewing such award.Considering the present circumstance of China and the experience of the UnitedStates and the European Union, the forth part will suggest that China shall recognizethe arbitrability of the antitrust issue and build substantial review mechanism of theinternational commercial arbitration award involving antitrust issue.