Recognition And Enforcement Of Arbitral Awards Concerning On The Anti-trust Issues

Traditionally, the anti-trust issues is not capable of settlement by arbitration concerning on the public policy and its very nature of the public law. However, the anti-trust issues between private entities have sharply increased and the traditional administrative and judicial resolutions have been stretched thin with the economic and social development. Meanwhile the scope of subject matter of the difference capable of arbitration has expanded with the development of the international commercial arbitration. There is a breakthrough with regard to The arbitrability of the issues on intellectual property and securities in countries. The supreme court of the U.S. confirmed the arbitrability of the international anti-trust issues in the Mitsubishi Motors Corp. v. Soler Chrysler-plymouth, Inc. and developed a judicial review system in the following cases. The settlement of the anti-trust issues by arbitration also appeared in EU.Our government has attached more importance to the anti-trust issues since the implement of the Anti-monoply Law of PRC in 2007 and a series of anti-trust measures against the imported motor vehicles and mobile phone chips last year. Although whether the arbitral awards concerning on the anti-trust issues can be recognized or enforced and the arbitrability of the anti-trust issues are not clarified in the legislation of China, there are possibilities for the recognition and enforcement of the foreign arbitral awards concerning on the anti-trust issues from the perspective of the theory and practice. Therefore, the legislation thereby shall be improved and the judicial review system shall be established, to link our anti-trust arbitration with the international practice.This thesis focuses on the possibility of the recognition and enforcement of the arbitral awards concerning on the anti-trust issues upon the analysis of the New York Convention and practices of the U.S. and EU to explore the legal basis of the recognition and enforcement. Hopefully this thesis may help the legislative authority to establish the legal system of recognition and enforcement of the arbitral awards concerning on the anti-trust issues in China.This thesis is composed of four chapters.The first chapter is the brief introduction of the anti-trust issues and the traditional dispute resolutions thereby, of which the purpose is to introduce the settlement of anti-trust issues between private entities by arbitration, through the comparison of the advantages between arbitration and other resolutions.The second chapter analyzes the refusal grounds in article V of the New York Convention, from the perspective of arbitrability, public policy and the tribunal’s authority and concludes the possibility of the recognition and enforcement.The third chapter explores the cases of the U.S. and EU, through which the author clarifies the arbitrability and the routines of the U.S. and EU to review the arbitral awards concerning on the anti-trust issues.The last chapter points out the existing situations on arbitrability of the anti-trust issues in the legislation of China and provides some suggestions on it. Upon the analysis, this chapter also suggests to explore the possibility of recognition and enforcement of the arbitral awards concerning on the anti-trust issues in China and to establish the judicial system to review such arbitral awards under the laws in force.