Research On The Arbitration Of China's Antitrust Disputes

The Anti-Monopoly Law is also called "Economic Constitution",which ensures the market competition order and protects the public interest,with a strong "public law" color.Commercial arbitration,as an institutionalized means of settlement of extrajudicial disputes,adheres to the principle of private autonomy of will and has the characteristics of simplicity,rapidity and efficiency.Confined to the value conflict between anti-monopoly public law and arbitration private system,the settlement of anti-monopoly disputes in China mainly focuses on administrative enforcement and private civil lawsuit,while arbitration resolution is excluded.Selective law enforcement,inefficiency,and high rates of the plaintiff's failure have been widely criticized.Since the second half of the 20 th century,with the booming market economy and the increasingly close connection between international commercial trade,the number of anti-monopoly dispute cases has increased significantly.The United States and the European Union has passed the "America Safety Equipment Case","Mitsubishi Motors Case","Eco Swiss Case","Kotam v.JBL Case" and other judicial practice.The change of anti-monopoly disputes from non-arbitrable to arbitrable has been realized gradually,which has brought new ideas for the resolution of anti-monopoly disputes.However,domestic research on the arbitration of anti-monopoly disputes is still in the stage of academic discussion,which is limited to the arbitrability argumentation.In view of this,it is particularly necessary to realize the breakthrough in China's anti-monopoly dispute arbitration.The problem of anti-monopoly dispute arbitration involves two aspects: arbitrability and system construction.The discussion of arbitrability is an inevitable preposition problem in the system construction,and the construction of system is also the principle that should be included after the establishment of arbitration path.This paper mainly discusses whether the antimonopoly disputes can be submitted to arbitration and how to construct China's anti-monopoly dispute arbitration system.Based on the analysis of extraterritorial classic cases,the paper combines China's current legal system and objective current situation,and demonstrates the necessity and feasibility of applying anti-monopoly dispute arbitration in China.In addition to the administrative monopoly or involved in public policy cannot be submitted for arbitration,the monopoly agreements,abuse of dominant market position and concentration caused by these three transverse antitrust dispute should also be included in the scope of arbitration.Then this paper gives a complete view on the establishment of China's anti-monopoly dispute arbitration system from three aspects: legal principle,entity system and program design.Finally,this paper put forward a number of practical and multiple suggestions,such as improving autonomy of arbitration intention,careful application of public policy,determination of arbitration scope of anti-monopoly disputes,formulation of substantive judicial review standards for active application,the establishment of a training mechanism for arbitrators' selection and appointment,the distribution of burden of proof and the exchange of evidence under the arbitration mechanism.