Arbitration and Competition Law: the Potential of Ireland in the Privatisation of Competition Law

Date01 January 2014
Arbitration and Competition Law:
The Potential Role of Ireland in the
Privatisation of Competition Law
Arbitration and competition law are strange bedfellows. In some ways they
are inherently contradictory and incompatible, but equally they can greatly
complement one another in certain situations. They are contradictory
because arbitration creates and enhances private autonomy while com-
petition law is a method used by the state to restrain inappropriate private
conduct in the market with the aim of maximising the benets of economic
activity for the public good. However, arbitration ourishes in a free
market economy system with freedom of commerce and competition, and
it could well make a lasting contribution to the common market attaining
its full potential. The ability to conclude arbitration agreements and to
enforce arbitral awards across borders has always been considered a great
incentive for the development of trade in goods and services and for the
mobility of persons among different nations. Europe has seen a great rise
in the levels of businesses opting for arbitration to solve their disputes, so
the integration of national arbitral bodies with their European and global
counterparts is becoming ever more important and, in the Irish context, this
will be a key element to ensure that this jurisdiction remains an open and
viable alternative for investment.1
With these issues in mind, this article will examine the use of arbitration
in competition law from an Irish perspective, with a focus on the challenges
faced by arbitrators operating in a jurisdiction where infringements of the
competition rules can carry the weight of the criminal law and potentially
lead to custodial sentences. Competition issues in arbitration proceedings
usually arise in the case of a breach of contract where the defendant
claims the nullity of the contract or of certain parts of it because it is anti-
* B. Corp Law International (NUI), LLB (NUI), LLM (EUI), PhD Candidate at European
University Institute, Florence; Associate Researcher at Department of Economics,
Trinity College Dublin; Trainee Solicitor at LK Shields Solicitors, Dublin. Author can
be contacted at
1 For more on arbitration law in Ireland, see e.g. B. Manseld, Arbitration Act 2010 and
Model Law: A Commentary (Dublin: Clarus Press, 2012); for arbitration law in the
UK and global context, see e.g. Francis Russell, Russell on Arbitration (London: Sweet
& Maxwell, 2007)
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competitive. It could also be the case that a co-contractor claims damages
because of harm incurred through his counter-party’s violation of the
competition rules. After setting the scene by examining the key issues in
the debate around the suitability of deciding competition law issues in an
arbitration setting, this article will examine the peculiar problems faced by
arbitrators where criminal sanctions are at stake.
Part 1. Relationship between Competition and Arbitration
Arbitration as a Tool for Competition Law Enforcement
Broadly speaking, competition is used as the basic mechanism of the market
economy on both sides of the Atlantic in order to encourage companies
to offer goods and services to consumers on the most favourable terms.
It thereby encourages efciency and innovation and reduces prices while
also seeking to promote fair competition on the merits by protecting
consumers and wronged competitor businesses from anti-competitive
business practices. While the doctrines and systems on either side of the
Atlantic share the core elements mentioned above, in practice there are
some key differences—not least in terminology where the term “antitrust”
is widely used in the US for matters that would be encompassed in the
term “competition law” in the EU.2 For the purposes of this discussion,
“competition law” and “antitrust” shall be understood in the narrow sense,
so as to exclude the notion of unfair competition. Similarly, no reference
shall be made to branches of law related to competition law but specic to
EU Law, such as the control of State aids.
The competition enforcement system in the EU has played a role in
the development of arbitration as a tool for competition authorities.
As enforcement has focused on public enforcement by the European
Commission, private litigation is unlikely to rise to the same level it occupies
in the U.S. due to the absence of, or limitations on, procedural incentives.
Class actions do not play the same prominent role, and the innovative new
representative actions that have been introduced in the UK and Germany
remain underutilised. Signicantly, there are limited procedures for enabling
individuals to access relevant proofs, such as whistleblower reports.3 Thus,
2 For general comparative studies on EU/US competition law, see e.g. Eleanor M. Fox,
U.S. Antitrust Law in Comparative Context, Cases and Materials, 3rd edn (Rochester,
NY: West Academic, 2012)
3 There has been some progress in this regard in Ireland with the publication of the
Protected Disclosures Bill 2013. See further, Transparency International Ireland
welcomes publication of Irish ‘Whistleblower’ Bill, Transparency International Ireland, 3
July 2013 (available at:
[Accessed 27 April 2014])
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