Dispute Resolution, International Law, RMLNLU International Legal Essay Competition

Arbitrability of Competition Law Issues

By: Alefiyah M. Shipchandler

INTRODUCTION

International arbitrations are those which involve cross-border commercial disputes between private parties. More often than not, these disputes arise out of commercial disagreements and conflicts. However, the existence of a certain contest with reference to antitrust laws is not unheard of.  The common perception, however, is that antitrust laws raise an array of complex issues ill-suited for international arbitration.

The tension between antitrust laws and international arbitration derives from their fundamental opposition along the public-private dichotomy.[1] While antitrust law seeks to protect public interests by ensuring free and fair competition in markets, international arbitration is of a private nature and a creature of contract. Thus, the public function of antitrust law and the private ordering of international arbitration collide, when a party in an arbitral proceeding invokes antitrust claims in addition to standard breach of contract claims.[2]

Considering such conflict especially with the rise in popularity of international arbitration, it becomes essential to look at the compatibility of certain inherent principles of both arbitration and competition law. This essay recognizes innate difficulties involved in the arbitrability of competition law issues but argues that there do not exist any impregnable obstacles that prevent the same. While Part I deals with the general arguments involved in the debate, Part II deals with certain specific principles.

 PART ONE

‘Arbitrability’ of Disputes

Arbitrability is primarily concerned with whether a particular type of dispute is amenable to settlement by arbitration or not. Arbitrability includes both subjective (ratione personae) as well as objective (ratione materiae) arbitrability. Objective arbitrability deals with whether under applicable law, the particular subject matter of a dispute is capable of resolution by arbitration, in light of relevant public policy considerations.[3] Since the fundamental objective of competition enforcement is not to protect competitors, but to preserve fair competition conditions in the market, it is considered a part of public policy.

The precise definition of the term ‘arbitrability’ however has not been provided for by the UNCITRAL Model Law on International Commercial Arbitration[4] nor the Convention on the Recognition and Enforcement of Foreign Arbitral Awards[5], the view being that, ‘the Model Law should not contain a provision delimiting non-arbitrable issues’.[6] However, according to Article 34 of the Model Law, an award can be set aside where the court is of the opinion that the subject-matter of the dispute is not capable of settlement by arbitration. Similarly, under Article V(2)(a), of the New York Convention, recognition and enforcement of the award can be denied on the same ground as aforesaid. Thus, the arbitrability of a dispute or subject matter has to be determined from the point of view of not only the lex arbitri but also the law of the land where the arbitral award will be sought to be enforced. The lack of arbitrability is thus a limit of party autonomy which in turn limits the jurisdiction of the arbitrators, and public policy is a specific quantification of that limit.[7]

Arbitrability itself is no doubt closely connected to the concept of public policy, considering the direct repercussions it has on both the structure and proper functioning of the market economy. Nonetheless, arbitrability and public policy is not the same thing, but simply complement one another.[8] The lack of arbitrability of certain kinds of disputes is premised on the fact that, because arbitration is a private proceeding with public consequences, it should be heard in the public domain.[9] Others argue that arbitral tribunals may be unwilling to apply certain laws as accurately as courts would.[10] It is also said that those disputes involving questions regarding the exclusive functions of the state, should essentially be non-arbitrable.[11] Lack of available precedents further imposes difficulties in terms of uniform application of law.

Most antitrust disputes derive from two bigger groups of antitrust violations – anticompetitive contracts and monopolization. Even within these two categories, antitrust disputes are extremely diverse as to their facts, parties, and the nature and complexity of the relationships among parties. Such disputes therefore vary widely in terms of suitability for arbitration, which might be further limited by the scope of the arbitration agreement at issue.[12] It becomes important to thus determine not only the arbitrability of competition law issues but also to ascertain whether the arbitration agreement between the parties is broad enough to include within its ambit disputes arising out of competition law considerations.

As far as antitrust arbitration is concerned, the initial apprehension was that foreign arbitrators, who had no knowledge of national and domestic laws, could very easily evade antitrust rules. Thus courts were granted exclusive jurisdiction over such matters and the inarbitrability of antitrust disputes was until recently a global standard.

JURISPRUDENTIAL DEVELOPMENTS

Traditionally, in most jurisdictions, competition law is enforced exclusively through competition law authorities established by the law. This aspect at the outset thus limited the possibility of antitrust arbitration.

As early as 1960, in American Safety,[13] a domestic arbitration case, it was held that,

“Issues of war and peace are too important to be vested in the generals… decisions as to antitrust regulation of business are too important to be lodged in arbitrators chosen from the business community.”

While concluding that Congressional policy does not permit the use of arbitration to resolve antitrust claims, the Court also opined that antitrust issues are by nature complicated and require extensive evidence and are therefore more appropriately resolved by judicial procedures. The heart of the court’s reasoning, however, was that a claim under the antitrust law is of more than private interest.[14] The Court thus directed the determination of so much of the case as may be necessary, such that in the arbitration, of the claims under the concerned License Agreement involved in the case, the arbitrators would not be called upon to determine antitrust issues. The result was the establishment of the rule that, in antitrust cases, an arbitration agreement is valid for the resolution of only non-antitrust issues.

The only exception to this rule was that an arbitration agreement made after an alleged antitrust violation[15] has occurred and is in dispute may be enforced with respect to the antitrust issues.[16] The rationale behind the exception is that since parties may settle antitrust claims out of court, and since plaintiffs are free to refrain from suing after a violation has occurred, the parties ought to be able to settle the claim by arbitration.[17] The position of American Safety was followed in Overseas Motors, Inc.,[18] a case involving international arbitration, where the court held that since public interest was not represented nor considered in the arbitration proceeding, those matters under dispute to which public interest can be attached, should be relitigated before a court.

It is interesting to note that in 1974 the U.S. Supreme Court in Scherk v. Alberto-Culver Co.,[19] held that that securities issues which are generally non-arbitrable in a domestic context will nevertheless be arbitrable when they arise in connection with an international transaction. The rationale was,

“A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction, and obviates the danger that a dispute under the agreement might be submitted to a forum hostile to the interests of one of the parties or unfamiliar with the problem area involved; a parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advances.”

Thus the question that arose was if the same policy could be followed regarding the arbitrability of antitrust disputes. This was answered by the U.S. Supreme Court in Mitsubishi Motors,[20] which finally gave a green light to antitrust arbitration. The Court held that,

“The mere appearance of an antitrust dispute does not alone warrant invalidation of the selected forum on the undemonstrated assumption that the arbitration clause is tainted. So too, the potential complexity of antitrust matters does not suffice to ward off arbitration; nor does an arbitration panel pose too great a danger of innate hostility to the constraints on business conduct that antitrust law imposes. And the importance of the private damages remedy in enforcing the regime of antitrust laws does not compel the conclusion that such remedy may not be sought outside an American court.”

The court’s view, that ordinary review available under the New York Convention at the enforcement stage contributed to there being sufficient control on the observance of the public policy behind antitrust laws, has come to be called the “second look doctrine”.[21] Thus, the current position seems to be that as long as the prospective litigant can effectively vindicate its statutory cause of action in the arbitral tribunal, the same shall be permitted.[22]

It is however also necessary to take note of the dissenting opinion in the case. Stevens J. writing for the minority found that in effect only express wording in an arbitration clause would extend to a statutory remedy such as one ensuing from a violation of US antitrust law. In addition to the uniquely important public policy behind antitrust law, ordinary review by courts of arbitration awards at the enforcement stage under the New York Convention was no sufficient assurance of the application of antitrust law.

On the other side of the Pacific, the Mitsubishi Motors position was reiterated by the European Court of Justice in Eco Swiss v. Benetton,[23]  where a statement protesting against any lack of arbitrability of EU competition law is conspicuous by its absence. The issue here was, as to what extent arbitrators are required to apply competition law ex officio when the parties are silent in arbitral proceedings. The tacit effect of its holding was that if an arbitral tribunal did not consider the applicability of competition law to the facts before it, any arbitral award rendered by the tribunal could be held void and unenforceable by national courts for violating public policy.[24] Further, the modernisation of EU competition procedure through the adoption of the Modernisation Regulation[25] in 2004, has laid the foundations for private enforcement of the EU competition law rules in Europe, thereby creating a favourable environment for EU competition arbitration.

However, the fundamental distinction between public and private enforcement must be taken into account. Public enforcement falls under the exclusive jurisdiction of the competition authorities, with arbitration playing only a minor “accompanying” role. However, since competition law tolerates private enforcement, there is a place for arbitration.[26] It is thus essential to clarify that arbitrability of competition law, is only with respect to the ‘civil’ aspect of competition law,[27] in relation to the private law claims and not in relation to public sanction in the form of fines[28] following a violation of competition law.[29]

In India on the other hand, the development of competition law jurisprudence is still at its nascent stage. Thus it would seem that in international commercial arbitrations seated in India, private enforcement of competition law claims is limited. The Delhi HC in Union of India v. CCI,[30] held that all issues were to be raised before the CCI itself, as the scope of proceedings before CCI were entirely different from contractual obligations dealt before an Arbitral Tribunal and the Act had overriding effect over all other laws. The Arbitral Tribunal does not have the mandate, neither the expertise nor the ability to conduct an investigation necessary to decide issues of abuse of dominant position by one of the parties to the contract. In view of the above, disputes on abuse of dominance were held non arbitrable.

This decision seems to follow the general concept of ‘arbitrability’ of dispute which has been established in India as only those which involve the determination of rights in personam.[31] This rule nevertheless provides for an exception to the extent that even rights in personam arising from rights in rem are considered to be arbitrable. Thus, following this, there is no inherent bar to the private enforcement of competition law by way of arbitration.  The problem in the Indian context, however, arises due to the case of Kingfisher Airlines Limited,[32] which held that even action in personam would be non-arbitrable if it has been reserved for resolution by a public forum as a matter of public policy. The Competition Act does not provide for an alternate method of dispute resolution and the CCI or COMPAT do not have statutory powers to direct parties to use such methods.[33] Thus the possibility of allowing the application of competition law in an international arbitration seated in India still remains undecided.

Another question which also arises is whether the tribunal can raise competition law issues sua sponte or ex officio, where the parties are silent about the antitrust implications of their contract. It is argued that Eco Swiss created such an obligation when it held that national courts were entitled to set aside an award which violated EU competition law on public policy grounds. Applying antitrust law, as well as raising antitrust issues sua sponte, has become mandatory for any arbitrator seeking to render an enforceable award. Failure to do so would make an award susceptible to challenges on public policy grounds, in setting aside and enforcement proceedings.

CONFLICT OF LAWS

In addition to deciding whether an arbitral tribunal can apply competition law, another dilemma which arises is as to which competition law will be applicable and as to the method of application. The most obvious criticism to the arbitrability of competition law issues, which thus arises, is that it essentially undermines and deems irrelevant the will of the parties, especially when it comes to their choice of seat of arbitration and consequently governing law. The multiplicity of various national antitrust laws to be considered in antitrust arbitration is the reflection of international commercial arbitration itself, which commonly calls for application of several different systems of law.

The arbitrators’ power or duty to apply competition law will not derive from the law of the seat of the arbitration, since that law will not mandate the application of the local competition law if the relationship submitted to arbitration has no effects on the markets of that country.[34] For example, if the seat of the arbitration is in Singapore and the relationship impacts the market of the European Union or the United States, then Singapore competition law will not be applicable. On the other hand, the lex arbitri (including its conflict of laws rules which may or may not be applicable also to arbitrators) is unlikely to require the application of the competition law of a third State.[35] Thus, irrespective of the will of the parties, the applicability of antitrust law in international arbitration may ultimately be determined by its own criteria of application, established in such law. This has been referred to as the ‘self-connection’ principle of antitrust law.[36] The solution however, will be less obvious in more complex situations, due to plurality of competition laws that at least in principle could be held to be applicable or where the place of enforcement cannot be identified in advance, also bearing in mind that the enforcement court will not normally be concerned about the violation of the competition law of another country.

Considering such complications, a paradox seems to arise, where arbitral tribunals will be required to look into and take into account various competition laws, vis a vis courts, who as a rule will look into only its own country’s competition law. In such circumstances an additional burden is imposed on the tribunals who will be required to navigate between the twin perils of being accused of aiding in antitrust violation, and of assuming a role of universal enforcers of antitrust law which certainly is not theirs.[37]

PART TWO

While initial divergences on the issue have now largely been overcome, differences on certain key principles still remain, which could legitimately hinder the arbitrability of competition law issues.

Claim for Damages

Compensation for damages, incurred due to antitrust injury, constitutes the greatest incentive and most useful instrument with respect to private enforcement of competition law. Under European law[38] there are no objections to the arbitrability of actions for damages, for tortious breach of competition rules.[39] The numerous problems do not arise from competition law, but from arbitration law, such as existence of the arbitration agreement with plurality of parties compounding the problem. For example, arbitration may resolve the issue of damages resulting from an abuse of a dominant market position in a relationship between two parties. However, it is difficult to imagine an equivalent solution for cartels, due to both plurality of respondents and presence of multiple claimants.[40]

Further, certain specific problems may also arise. For example, arbitration may be considered to serve as an obstacle to treble damages, to which a claimant is entitled to under the Clayton Act. In ordinary commercial arbitrations, such statutory provisions would not be binding on the arbitrator. Thus in theory, just as the courts have held void as contrary to public policy contractual provisions whereby the parties waive rights to collect for future antitrust violations, or waive claims for more than actual damages in future litigation, a binding referral to arbitration (where rights to treble damages and attorneys’ fees could not be secure) similarly should be unenforceable.[41] This shortcoming has been tackled to a certain extent with the First Circuit Court holding that rights to an action for treble damages because of an arbitration agreement cannot be waived.[42]

Follow-on Damages

Claims for breach of competition law can be brought on either a follow-on or standalone basis. A follow-on claim must relate to precisely the same facts as the infringement decision of the competition authority. Contrary to a standalone basis action, in follow-on actions, claimants do not need to establish an infringement (which has already been established by the infringement decision itself) and therefore need only demonstrate antitrust injury.[43] The majority of known antitrust arbitrations are stand-alone arbitrations. Such arbitrations typically involve a contractual relationship between the parties initiated expressly to address antitrust claims or instances where antitrust claims are invoked in parallel or in defence to other claims brought in arbitration. It is this latter category of claims that is exceptionally well suited for arbitration not only due to privity but also because arbitral tribunals are required only to calculate the amount of awardable damages.[44]

The obstacle is in the nature of both the potential uncertainty as to whether agreements to arbitrate will be interpreted as reaching follow-on damages claims, and to the complex nature of follow-on actions, which tend to involve multiple parties and legal relationships. Such claims may be considered contractual or extra-contractual in nature. Under well developed principles of curial law in many jurisdictions, broadly worded agreements to arbitrate are frequently construed as covering disputes related to the parties’ contractual relationship, whether the claims are contractual or tortious in nature.[45]

However the ECJ, in a case dealing with a forum selection clause it was held that, the “undertaking suffering the loss could not reasonably foresee such litigation at the time that it agreed to the jurisdiction clause” and that “such litigation cannot be regarded as stemming from a contractual relationship”.[46]  While the ECJ did not address the scope of agreements to arbitrate in the context of follow-on claims, the Amsterdam Court of Appeal[47] has applied the reasoning of the ECJ’s judgment to arbitration agreements, failing to distinguish between arbitration agreements and forum selection clauses in relation to follow-on damages actions. Such an interpretation raises valid concerns about the availability of international arbitration for follow on actions.

Another pressing concern would be with respect to the res judicata impact of the award considering that arbitral awards cannot generally be enforced, or interposed for recognition, against parties that are not within the jurisdiction of the arbitral tribunal. Thus even if agreements to arbitrate follow on actions could be found in such contracts, it will not be possible in many cases, in the absence of ex post consent, to achieve the extension of any such agreements to all relevant third-party non-signatories.[48]

Class Actions

While strong inclinations towards the arbitrability of competition law issues may exist, the impact of the same on private damage enforcement must be considered. By way of individual redress, natural or legal persons can bring proceedings to claim compensation; however there is reluctance to initiate private action against unlawful practices, in particular if the individual loss is small in comparison to the costs of litigation. Hence collective redress in the form of class actions and representative suits are usually availed of to claim such damages.

Class arbitrations follow an analogous model to class litigation; however, the legitimacy of class actions in international arbitrations remains controversial particularly since, even though the grundnorm in such dispute resolution remains party consent and autonomy, members of a class are bound by the award regardless of their participation in the proceedings. Further, the arbitral class is restricted to parties governed by similar arbitration agreements as the class arbitration representative.[49] In other words, the claims advanced in a class arbitration are limited by the nature of the contract in which the arbitration agreement is found.[50] Opponents maintain that class arbitrations disregard traditional principles of confidentiality, speed and efficiency. It is also believed that class arbitrations change the very nature of arbitration[51] particularly due to the fact that it involves excessive interference by courts and involve due process concerns.

Most jurisdictions provide for a collective action mechanism for claiming damages, US-styled class actions being in the forefront. The US Supreme Court[52] explicitly acknowledged that class claims could be arbitrated even though the arbitration agreement did not explicitly provide for class treatment. Thus, In re Currency Conversion Fee Antitrust Litigation,[53] class-wide arbitration of antitrust claims was permitted.  However, subsequently in Stolt-Neilson[54] the Court held that where the agreement is silent about class arbitration, the procedure will not be permissible.

In 2011, in AT&T,[55] the US Supreme Court also addressed the validity of class arbitration waivers. In this case the standard form contract, while providing for resolution of disputes by way of arbitration, expressly prohibited class actions. The Court here upheld such class action waiver provisions against unconscionability challenges.

In the antitrust context however, both the First[56] and Second Circuits[57] have found class arbitration waivers unenforceable, where the facts demonstrate that the waivers would effectively grant the defendant de facto immunity from the antitrust claims because the individual plaintiffs’ claims are too small to be pursued individually.[58] Courts have however left open the likelihood that on different facts, such waiver could be enforceable.   Nonetheless, the legal community seems to agree that if a corporation tries to impose a clause that would “preclude the use of class actions in any forum,” such a clause is deemed to be “unenforceable by the courts, either on the basis of unconscionability, or because it contravenes the terms, legislative history or purpose of a specific statute.”[59] Such an agreement would also be condemned to be against public policy.[60]

Finally, regarding the judicial history of class arbitration in the United States, it is worth noticing that a number of international class arbitrations have also been conducted.[61]  The American Arbitration Association (AAA) has also created new rules to govern class arbitration.[62]   However, arbitral tribunals and institutions acting in the field of transnational disputes while permitting large, consolidated arbitrations have not embraced class arbitration.[63] In 2005, the ICC even issued a statement taking the position that class action litigation has “adverse consequences for business and consumers, outweighing the perceived benefits to society.[64]

It is well entrenched that the validity of any arbitration agreement will depend on the common intent of the parties therein. Thus, the fundamental problem that arises in class arbitrations is whether the class members actually agreed to submit their dispute to arbitration. Further the representative will be able to act for the class provided each class member has entered into an agreement containing an arbitration clause which is substantially similar to that signed by the class representative(s) and each of the other class members.[65]  Thus, putative claimants who do not have any such contract with the plaintiff will not be able to be a member of the class and hence cannot claim under the class action.

HORIZONTAL AND VERTICAL AGREEMENTS

The fact that arbitrators will mostly handle vertical restraints since these do not present the voluminous and protracted proceedings characteristic of other types of antitrust proceedings (like horizontal agreements) has been impliedly acknowledged.[66] A question which then comes to light is whether horizontal price-fixing claims can be arbitrated on the basis of an arbitration clause contained in a customer’s purchase agreement with one of the alleged price-fixers.

In Coors Brewing Co.[67] it was held that the arbitration clause in question covered only disputes arising out of the contract and not allegations that the defendant entered anticompetitive agreements with a third party not privy to the contract. Thus, Coors serves to limit Mitsubishi mainly to ‘vertical’ antitrust disputes, which typically involve only the parties to a contract.[68]

Contrary to this was, JLM Indus. Inc.[69], where plaintiffs who had chartered ocean tankers, brought a class action alleging price-fixing by the tanker owners. The transactions at issue were governed by 80 identical contracts between the plaintiffs and each of the defendants containing a broad arbitration clause that covered “any and all differences and disputes of whatsoever nature arising” from the contracts. On the basis of these arbitration clauses the Second Circuit agreed to compel arbitration of the price-fixing claims. The rationale was that since the allegations concerned the actual agreed price terms contained in the contracts, the claims were covered by the arbitration agreement. Thus, depending on the facts of the case and the nature of the arbitration agreement, it may be possible to arbitrate horizontal price-fixing claims.

CONCLUSION

While it may be true that a few inherent principles of arbitration and competition law differ, it is necessary to acknowledge that they are not irreconcilable. Given the fact that reliance on arbitration in transnational commercial relations, is on the rise, it is imperative to read the resolution of competition law issues into broadly framed arbitration agreements, albeit, within the demarcations prescribed by arbitration law. It is also imperative to recognize that due to international conventions, arbitral awards are more likely to be enforced by domestic courts than foreign court judgements, thereby increasing compliance. The conflict-of-law situation which may arise in antitrust proceedings can also be effectively tackled by an arbitral tribunal in the manner aforementioned, something a court may not be able to do where multi-nationality parties are involved.

Keeping in mind party autonomy in forum selection as far as arbitration is concerned arbitrators must be recognized as competent in determining certain antitrust issues. Arbitral tribunals must be empowered to serve as catalysts in enforcing compliance with competition law, especially private enforcement.

[1] Sotiris I Dempegiotis, ‘EC Competition Law and International Commercial Arbitration: A New Era in the Interplay of These Legal Orders and a New Challenge for the European Commission’ 1 Global Antitrust Rev 135, 2008.

[2] Vera Korzun, ‘Arbitrating Antitrust Claims: From Suspicion to Trust’ 48 NYUJ Int’l L & Pol 867, 2015-2016, [hereinafter, ‘Vera Korzun’].

[3] Gerald Aksen & Karl-Heinz Bockstiegel, ‘Global Reflections on International Law, Commerce and Dispute Resolution’ International Chamber of Commerce, 2005.

[4] Hereinafter, ‘Model Law’.

[5] Hereinafter, ‘New York Convention’.

[6] Report of the Working Group on International Contract Practices, Fifth Session, 1983 <https://www.uncitral.org/pdf/english/travaux/arbitration/ml-arb/acn9-233-e.pdf&gt; accessed 27 January 2018.

[7] Karl-Heinz Bockstiegel, ‘Public Policy and Arbitrability’ Comparative Arbitration Practice & Public Policy in Arbitration, ICCA Congress Series No 3.

[8] Ilias Bantekas, ‘The Foundations of Arbitrability in International Commercial Arbitration’, 27 Aust YBIL 193, 2008, [hereinafter, ‘Ilias Bantekas’].

[9] Alan Redfern, Martin Hunter & Nigel Blackaby, Law & Practice of International Commercial Arbitration (Sweet & Maxwell, 4 edn 2004).

[10] American Safety Equipment Corp v JP Maguire & Co 391 F 2d 821, [hereinafter, ‘American Safety’].

[11] Bantekas (n 8).

[12] Michael Bowsher, ‘Arbitration and Competition’ Competition Litigation in the UK 398, 2005.

[13] ibid (n 10).

[14] William J Nisen, ‘Antitrust and Arbitration in International Commerce’ 17 Harv Int’l LJ 110, 1976.

[15] Cobb v Lewis 488 F 2d  41.

[16] Coenen v RW Pressprich & Co 453 F 2d 1209.

[17] Robert Pitofsky, ‘Arbitration and Antitrust Enforcement’ 44 NYUL Rev 1072, 1969.

[18] Overseas Motors, Inc v Import Motors Ltd Inc 375 F Supp 499.

[19] Scherk v Alberto-Culver Co 417 US 506, 1974.

[20] Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc 473 US 614, 1985, [hereinafter, ‘Mitsubishi Motors’].

[21] This in turn has led to the debate concerning the maximalist and minimalist intervention theories with reference to arbitral awards dealing with antitrust issues.

[22] GKG Caribe Inc v Nokia-Mobira, Inc 725 F Supp 109; Gemco Latino-America, Inc v Seiko Time Corp 671 F Supp 972.   

[23] Eco Swiss v Benetton 126/97, ECR 1999.

[24] Michael Buxton, ‘The Arbitrability of US Antitrust and EU Competition Law Matters (with special reference to lawyer-client privilege)’ 2 YB on Int’l Arb 209, 2012.

[25] EU Modernisation Regulation 1/2003 (Antitrust Enforcement Regulation) <http://ec.europa.eu/competition/publications/cpn/2004_2_1.pdf > accessed 27 January 2018.

[26] OECD on ‘Arbitration and Competition’ DAF/COMP(2010)40.

[27] S Dempegiotis, ‘EC Competition Law and International Arbitration in the Light of EC Regulation 1/2003: Conceptual Conflicts, Common Grounds, and Corresponding Legal Issues’ Journal of International Arbitration 25(3), 2008.

[28] JD Lew, L Mistelis, and S Kröll, Comparative International Commercial Arbitration(Kluwer Law International 2003).

[29] ET Plus SA v Welter [2005] EWHC 2115 (Comm).

[30] Union of India v CCI WP (C) 993 of 2012 & CM Nos 2178-79 of 2012.

[31] Booz Allen and Hamilton Inc v SBI Home Finance Limited (2011) 5 SCC 532.

[32] Kingfisher Airlines Limited v Prithvi Malhotra Instructor 2013 (7) Bom CR 738.

[33] Tanya Choudhary, ‘Arbitrability of Competition Law Disputes in India – Where Are We Now and Where Do We Go From Here?’ IJAL, Vol 4, Issue 2, 2016.

[34] ibid (n 26).

[35] ibid.

[36] Luca G Radicati Di Brozolo, ‘Arbitration and Competition Law: The Position of the Courts and of Arbitrators’ 27J London Court Int’l Arb 1”, 2011.

[37] ibid.

[38] Directive 2014/104/EU of the European Parliament and of the Council on ‘Certain Rules Governing Actions for Damages Under National Law for Infringements of the Competition Law Provisions of the Member States and of the European Union’ <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0104&from=EN&gt; accessed 27 January 2018.

[39] A P Komninos & M. Burianski, “Arbitration and Damages Actions Post-White Paper: Four common Misconceptions”, GCLR, 2009.

[40] ibid (n 26).

[41] Pitofsky (n 17).

[42] Kristian v Comcast Corp 446 F2d 25; In Re: Am Express Merchants Litigation, 554 F3d 300.

[43] Indian Competition Act 2002, s 53N.

[44] Miriam Driessen-Reilly, ‘Private Damages in EU Competition Law and Arbitration: A Changing Landscape’ 31 Arb Int’l 567, 2015.

[45] Aren Goldsmith, ‘Arbitration and EU Antitrust Follow-on Damages Actions’ Kluwer Law International 2016, Vol. 34, Issue 1, [hereinafter, ‘Aren Goldsmith’].

[46] CDC Hydrogen Peroxide SA v Akzo Nobel NV and Others Case C-352/13.

[47] P Pavlova, ‘First Application of ECJ’s Ruling in C-352/13, CDC Hydrogen Peroxide, in Dutch Private Enforcement Proceedings’ <http://conflictoflaws.net/2015/first-application-of-ecjs-ruling-in-c-35213-cdc-hydrogen-peroxide-in-dutch-private-enforcement-proceedings/utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29&gt; accessed at 27 January 2018.

[48] Goldsmith (n 45).

[49] American Arbitration Association, Supplementary Rules for Class Arbitrations, <https://www.adr.org/sites/default/files/Supplementary%20Rules%20for%20Class%20Arbitrations.pdf&gt; accessed 27 January 2018 [hereinafter, ‘Supplementary Rules for Class Arbitrations’].

[50] Michael Schafler & Amer Pasalic, “Is Canada Ready for Class Arbitration?”, ADRIC, 2013.

[51] Strong, ‘Does Class Arbitration “Change the Nature” of Arbitration? Stolt- Nielsen, AT&T, and a Return to First Principles’, 17 Harv Negot L Rev 201, 2012.

[52] Green Tree Financial Corp v Bazzle 539 US 444.

[53] In Re: Currency Conversion Fee, 361 F Supp 2d 237.

[54] Stolt-Nielsen SA v Animal Feeds Int’l Corp 559 US 662.

[55] AT&T Mobility LLC v Concepción, 563 US 333.

[56] Kristian v Comcast Corp, 446 F3d 25.

[57] In Re: American Express Merchants’ Litig 554 F3d 200, [hereinafter, ‘American Express’].

[58] James J Calder and David S Stoner, ‘Arbitration, 24 Years After ‘Mitsubishi’ NYLJ, 2009.

[59] Bernard Hanotiau, “Complex Arbitrations: Multiparty, Multicontract” Multi-issue and Class Actions 260 (Kluwer Law International 2005).

[60] ibid (n 57).

[61] Harvard College v Surgutneftegaz (case involving a defendant based in Russia); CBR Enterprises LLC v Blimpie International Inc (concerning several US defendants with international holdings); Bagpeddler.com v US Bancorp (case involving non-US claimants).

[62] ibid (n 49).

[63] Lea Haber Kuck and Gregory A Litt, International Class Arbitration, in World Class Actions: A Guide to Group and Representative Actions Around the Globe, (Paul Karlsgodt edn, OUP 2012).

[64] Gabrielle Nater-Bass, ‘Class Action Arbitration: A New Challenge?’ 27 ASA Bulletin 671, 2009.

[65] ibid (n 49).

[66] Blackmun J in Mitsubishi Motors (n 20).

[67] Coors Brewing Co v Molson Breweries 51 F3d 1511.

[68] OECD, ‘Hearing on Arbitration and Competition’ DAF/COMP/WP3/WD (2010) 74.

[69] JLM Indus Inc v Stolt-Nielsen SA 387 F 3d 163.

(Alefiyah is currently a student at ILS Law College, Pune.)