| Anti-monopoly disputes not only involve private interests,but are also related to free market competition and social public policies.Therefore,as a specific type of dispute,they have long been excluded from the scope of arbitration.Chinese law does not clearly stipulate whether anti-monopoly disputes can be submitted to arbitration,but in judicial practice,courts generally tend to deny the arbitrability of anti-monopoly disputes.However,with the expansion of the scope of international commercial arbitration,many countries have gradually recognized the arbitrability of antimonopoly disputes.In particular,in the spirit of the "convenient to implementation" of the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”,member states recognize and enforce foreign anti-monopoly arbitration award.It is also necessary to consider whether it is consistent with the domestic policy of the country.In this view,China should appropriately loosen the restrictions,treat different types of anti-monopoly disputes differently,recognize the arbitrability of horizontal private monopoly,and gradually transition from international monopoly disputes to domestic monopoly disputes.On this basis,the judicial review of anti-monopoly arbitration awards in specific cases will be the last line of defense,establish and improve the judicial review system for anti-monopoly arbitrations in China,and strictly control the recognition and enforcement of arbitration awards to ensure that the national and public interests are not damaged.This article will expand the discussion from the following parts:The first part: Demonstrating the arbitrability of anti-monopoly disputes in China.First of all,the current traditional model of anti-monopoly dispute resolution in China has certain drawbacks,and the recognition of the arbitrability of anti-monopoly disputes is also a requirement for promoting the development of international trade and fulfilling the obligations of the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”.Therefore,it is necessary to submit anti-monopoly disputes to arbitration.Secondly,from the perspective of feasibility analysis,to a certain extent,anti-monopoly disputes can meet the standards of arbitrability of commercial disputes,and Chinese legislation also reserves room for this.At the same time,it is recognized that anti-monopoly disputes can be arbitrated as part of international commercial arbitration,and it is the general trend of gradual expansion.Therefore,China should loosen restrictions on the arbitrability of certain types of antitrust disputes,and improve the relevant dispute resolution mechanism.The second part: the general rules of judicial review of anti-monopoly arbitration.Firstly,anti-monopoly disputes are more complex and often involve large-scale enterprises or multinational companies with greater market influence.Therefore,the subject of judicial review of anti-monopoly disputes should be higher-level courts,and different stages should be differentiated.Second,with regard to the initiation of judicial review,the parties concerned apply for the validity of the arbitration agreement,while at the stage of revocation,recognition and enforcement of the arbitration award,they should actively review.Third,when conducting judicial review,the court should focus on relevant factors such as public policy,autonomy of will,and balance of interests.The third part: the specific standards of judicial review of anti-monopoly arbitration.Firstly,when the court recognizes and enforces an anti-monopoly arbitration award,it should determine the issue of arbitrability in accordance with the law of the country of enforcement.Secondly,adopt the judicial review standard of "different between inside and outside" to conduct a stricter substantive review of antimonopoly awards made by domestic arbitration institutions,while anti-monopoly awards made by foreign arbitration institutions can only be subject to the uniform standards of the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”.The fourth Part: Public policy reservations in the judicial review of anti-monopoly arbitration.The public law nature of the anti-monopoly law determines that the court’s judicial review of anti-monopoly awards cannot bypass public policy.According to the“Convention on the Recognition and Enforcement of Foreign Arbitral Awards”,public policy is one of the defense reasons for the local court to refuse to recognize and enforce foreign arbitral awards.The court should carefully apply public policy reservations when conducting judicial review of anti-monopoly rulings: First,the court should actively review whether the anti-monopoly ruling violates public policy,regardless of whether the party applies or not;second,adopt an "objective" judgment standard,that is,judging whether it violates public policy based on the results of the anti-monopoly arbitration;third,violation of the mandatory provisions of Chinese anti-monopoly law is not equivalent to violation of public policy,and should be determined based on the circumstances of the case. |
