By: Meenal Garg
Arbitration has extended its scope globally by including within its ambit, the resolution of those disputes that were traditionally incapable of being resolved by this alternative dispute resolution method. Despite this development, competition law is one of those domains of law where the applicability of international commercial arbitration is still considered as a grey area because of various issues like recognition, enforcement of arbitral awards etc. Commentators have often opined that arbitration and competition law do not form the perfect couple. Out of these issues, the arbitrability of a competition law dispute has been widely debated all over the world. The issue of arbitrability of any dispute is of utmost importance because arbitrability is one of the preliminary issues which need to be settled before proceeding with a claim through arbitration. Therefore, commentators opine that “arbitrability is… a condition sine qua non to arbitration.”
Furthermore, the nature of international arbitration is such that it gives rise to another set of complex issues which would have not arisen had it been a case of domestic arbitration. For instance, in an international arbitration the parties are free to choose an arbitrator who belongs to a third nation. In such cases, he may apply the competition law prevalent in several jurisdictions or he may have a different understanding of competition law which may lead to the reconsideration of competition law issues at post-award stage thus leaving the whole arbitration exercise futile.
Coming to the concept of arbitrability, there is no universally acceptable definition of arbitrability. In general, arbitrability answers the question of what types of disputes can be submitted to arbitration. Arbitrability of competition law disputes or the extent of applying competition law in arbitration differs from jurisdiction to jurisdiction. The argument of arbitrability may be raised in front of the court while enforcing the arbitral agreement or during the arbitration itself. Arbitrability is often broken down into two parts namely, objective and subjective arbitrability. Objective arbitrability or subject matter arbitrability means whether a particular kind of dispute is capable of being submitted to arbitration. In the present case, objective arbitrability would mean whether competition law disputes can be submitted to arbitration or not. Subjective arbitrability, on the other hand, refers to whether a particular type of dispute is capable of being submitted to arbitration. These two elements will be further explained in the following sections of this paper.
PAST, PRESENT AND FUTURE OF OBJECTIVE ARBITRABILITY
THE MANDATORY LAW PROBLEM
Arbitration is based on private autonomy whereas competition law is enacted with a view to protect a nation’s economic policy by promoting healthy competition. Thus, the tension between antitrust laws and international arbitration derives from their fundamental opposition along the public-private dichotomy. In terms of international commercial arbitration this dichotomy comes to light by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention). As per Art. V(2)(b), a signatory state may refuse to honour an arbitration agreement if the same is contrary to the public policy of the state.
Historically, the objective arbitrability of antitrust disputes was denied because it was feared that arbitrators would not be able to understand the intricacies of public policy. Therefore, competition law disputes which often contemplate both public and private interests, have been traditionally resolved by courts rather than extrajudicial tribunals.
It is a popular belief that the present debate regarding the arbitrability of competition law disputes began with the case law of American Safety Equip Corp v. J.P. Maguire. In this case, the court though not specifically ousting the arbitrability of antitrust disputes held that the ‘pervasive public interest’ arising out of such claims is inappropriate for arbitration.
Arbitrability is not a static concept; it keeps evolving with the passage of time. Thus, what was previously could not be submitted to arbitration can become arbitrable and that’s what happened in the infamous case law of Mitsubishi Motors. In this case, a U-turn was taken by the U.S. courts and it was acknowledged that there is no bar while settling competition law disputes through arbitration. The rationale behind this judgment was twofold. Firstly, it was held that the arbitrators are under a duty to apply competition law and secondly, that the courts always have a second chance to review an arbitral award.
To attain a different perspective, a detour can be made to European law. Under the EU regime, it is generally accepted that competition law is arbitrable. In the case of Eco Swiss China Time Ltd. v. Benetton International NV, the court ruled that it is acceptable under EU law to enforce arbitral claims pertaining to competition law disputes but it also ruled that competition law forms a part of public policy implying that the resultant arbitral award can be refused as per the New York convention.
Bantekas opines that states allow arbitrability of only those parts of antitrust claims which are of private nature. In his words, “states … where they expand the ambit of their arbitrability rules, do so only with regard to the private dimension of said claims and disputes and not with respect to the public law elements. The risk of control lost by the state is minimal and in any event, governments are aware of the significance of confidentiality relating to many business disputes, which the parties want to remove from the public domain and from their competitors.” This, by implication, means that if a competition law violation is punishable with fine only or with payment of damages to the affected party, the dispute is purely of a civil nature and can be brought before an arbitral tribunal like any other contractual or tort claim.
A serious problem in the context of international arbitration that stems from the above discussion is that arbitrability of competition law disputes is allowed only if the arbitrators adhere to the so-called ‘mandatory’ competition law rules. For the purposes of this paper, this debate is based on the premise that competition law is synonymous with public policy or at least has a close and proximate relation to the public policy of the state. This may pose as a serious hindrance in cases where the disputed transaction or the resultant award has effects in multiple countries. Furthermore, an arbitrator or an arbitration tribunal is essentially a creation of a contract and therefore his primary interest is to solve the dispute between the contractual parties by applying the choice of law agreed upon by the parties. Now the dilemma that an arbitrator is faced with is that if he applies the mandatory law, he would be exceeding his duties and the legitimate expectations of the parties which intentionally included or excluded the application of a particular law. On the other hand, non-compliance with the mandatory law may lead to a non-enforceable award.
Vera Korzun opines that the two facets of the problem are in fact interrelated and argues that the duty to apply mandatory competition law stems from the duty of an arbitrator to produce an enforceable award. Another way of saying this is that the parties cannot contract out of their statutory obligations.
Some authors have also submitted that to avoid inconsistencies due to non- application of mandatory antitrust law, the parties often contemplate (to a reasonable extent), the applicable mandatory antitrust law in the arbitration clause and in this way the arbitrator does not have any problem while deciding which antitrust is to be applied. However, such contemplations are neither predictable nor always possible to inculcate in the arbitration clauses. Landi and Rogers have opined that it is not always easy to determine in which country an award is sought to be enforced. The enforceability of an award will depend upon which party wins which in turn will depend upon which law is applied. Thus, this is not the best possible solution. Brozolo, a noted authority in this field, opines that application of mandatory rules should be supported by adequate reasoning on the part of arbitrators. Furthermore, different authors have recommended a variety of solutions to resolve the mandatory competition law problem based upon conflict of laws, seat of arbitration etc. It is submitted that it would not be incorrect to say that in all cases dealing with issues of competition law claims, the decision of the arbitrator would be based upon the facts and circumstances of each case. Thus, the reasoning would explain that on what basis an arbitrator has chosen the competition law of a particular forum amongst the available alternatives.
THE ‘SECOND LOOK’ SOLUTION
Now that it has been settled that it is mandatory to apply competition laws, the next step of the problem is to find a solution, i.e., how to ensure that the competition law is applied properly in an arbitral tribunal. It is admitted here that finding an appropriate solution is a tricky problem because historically the legal machineries of the state did not have faith in the competence of the arbitrators to apply competition law principles.
One solution that has been forwarded to maintain the public-private harmony is that the regulatory authorities can offer their expertise during the arbitration so that it can be ensured that the competition law of the state where the arbitration award is sought to be enforced, is applied properly. This solution has been proposed in the context of the Indian legal system. In response, it is submitted that such a recommendation suffers from various limitations. Firstly, such interference clearly infringes upon the autonomy of parties. Secondly, in cases where more than one jurisdiction is involved, the involvement of various regulatory authorities may lead to more complex proceedings as their expertise and submissions can be based on conflicting antitrust policies. Commentators, in general, have admitted to these limitations, yet they advocate that such interventions are acceptable practices on the basis of the notion that this would assist the arbitrator in rendering an enforceable award without the arbitrating parties running the risk of being exposed to additional or concurrent proceedings.According to the author, such an intervention is unnecessary and unsuitable considering the consensual nature of arbitration. Furthermore, the role of competition law authorities can be confirmed at the time of review by the national court which is popularly known as the second look doctrine.
The second look doctrine originated in the Mitsubishi case. Here, the court expressed, ‘the national courts of the United States will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the antitrust laws has been addressed.’ It is submitted here that the competition authorities can exercise their locus standi at the review stage paving a way for autonomous objective arbitrability at first instance.
Kolmogorova has stated, “the doctrine became an alternative to complete non-arbitrability of disputes, including competition disputes, by virtue of the fact that when national statutes may prohibit some aspects from been considered either by arbitration or through the private enforcement in whole, most of them nowadays are considered arbitrable subject to the public policy.”
Thus, the argument that arbitration is inconsistent with the mandatory nature of state competition law can be satisfied. This is because any arbitral award is inevitably subject to national court scrutiny that can exercise a degree of control as to the result of an arbitral award. This, however, does not prove that second look doctrine is a better solution. The present discussion has only shown that questions that were formerly addressed under the heading of ‘arbitrability’ now appear in the guise of ‘public policy’.
Sørensen and Torp have opined that while employing the second look doctrine, the court should look for gross mistakes regarding the application of national competition law and let the minor ones slip by. In their words, “the goal is not for the courts to substitute their own decision for that of the arbitrators… but a superficial test of the arbitrators’ legal rationale. Thus, the ‘second look’… is not one of ‘correctness’ but of ‘reasonableness’.” Wong has termed this as the ‘middle way’ approach, i.e., on one hand, it ensures judicial scrutiny of awards while on the other hand, it pays due consideration on maintaining the conclusive and binding nature of arbitral awards.
Contributing further to the liberal review of arbitral awards, Theobald has opined that before deciding upon the arbitrability of an antitrust dispute, a distinction must be made while considering the role of an arbitrator to resolve competition law issues in contrast to a regulatory authority. She opines that the role of an arbitrator is to provide relief and end misconduct whereas the role of a regulatory body is to re-establish fair competition in the market.
A clarification which needs to be stated here is that the liberal view presented here is not to be mistaken as a casual approach. In other words, the adoption of a liberal review policy does not mean that the court is barred from making an in-depth inquiry. Such an inquiry may be necessary where there is a procedural lacuna. For example, the arbitrator has given an award without adequate reasoning etc. Liberal view here simply means that if the court is satisfied that the necessary level of compliance has been adhered to, the court will ordinarily not reject an arbitral award simply on the fact that it involved competition law issues.
To summarise, the argument pertaining to objective arbitrability of competition law can be concluded by submitting that there is a favourable trend towards allowance of subject matter arbitrability of antitrust disputes. This allowance is mostly unconditional so far as the dispute is solely of private nature or only the private part of the dispute needs to be referred to arbitration. However, as far as the application of mandatory competition law is concerned, taking into account the inevitable nature of the ‘second look doctrine’, it would serve as a better alternative than state intervention in arbitral proceedings provided that liberal approach is adopted by national courts (or regulatory authorities, as the case may be) while scrutinising the arbitral award.
EXPLORING UNCHARTED TERRITORY OF SUBJECTIVE ARBITRABILITY
UNDERSTANDING SUBJECTIVE ARBITRABILITY
By and large, it has been established that there is a global trend to favour arbitration of competition law claims in limited circumstances. In words of Geradin and Villano, “over the past decades, a general trend towards the expansion of the perimeter of arbitrability has emerged and competition law-based claims have not escaped that expansion.” This raises the question as to why the debate on the arbitrability of competition law continues. The answer to this question is that initially, public policy and inexpertise of arbitrators to solve competition laws issues were the reasons forwarded by courts to deny arbitrability of competition law claims. These arguments have lost their relevance in the contemporary world and courts have recognised the importance of consent of parties which forms the essence of an arbitration agreement.
Ragazzo and Binder have put forth a proposition where arbitrability of competition laws may be denied in cases where the court feels that the consent of the parties gets vitiated while entering into arbitration agreements. Taking U.S. Consumer Law cases as the basis for their argument, they submit that the courts may deny arbitrability of a competition law claim where the party with more bargaining power had influenced the party with a weaker bargaining power to enter into such agreement.
This fictitious proposition throws light on subjective arbitrability of competition law disputes. Subjective Arbitrability in light of antitrust claims can be defined as whether a particular case can be submitted to arbitration keeping in mind the scope and interpretation of the arbitration clause. After all, as Blanke and Nazzini state, “competition law issues will, most frequently, arise from ‘an ordinary contractual dispute submitted to arbitration’”.
The English Court has opined, “there is no realistic doubt that such ‘competition’ or ‘antitrust’ claims are arbitrable: the matter is whether they come within the scope of the arbitration clause, as a matter of its true construction.”
Returning back to the proposition forwarded by Ragazzo and Binder, the response submitted by Gospodinov is that to render such an arbitration clause as null and void, the anticompetitive intention of the party with stronger bargaining power needs to be proved. In support of this response, it is submitted that in today’s competitive world, negotiation is seldom carried out by parties with equal bargaining powers. It may so happen that a major part of the agreement favours the party with greater bargaining power and a relatively lesser portion of the agreement favours the party with lesser bargaining power. In such cases, the latter party will accept such an agreement despite its flaws only if it believes that the agreement in toto is beneficial to his own interests. Therefore, it is submitted that the mere fact that the arbitration clause was negotiated between two parties with unequal bargaining powers does not per se act as a basis for denying subjective arbitrability of a particular dispute.
The difference between subjective and objective arbitrability is that the former does not raise a question of public policy. While determining the subjective arbitrability of competition law disputes, the law of contracts and established principles of interpretation form the core of this concept.
Gospodinov in his thesis has laid emphasis on subjective arbitrability by arguing that “since arbitration exclusively originates from the parties’ will and has a purely contractual nature, the scope of the arbitration clause drafted and agreed upon by the parties need to cover the specific matter at stake in the dispute. If it is not proved that the parties’ intention was to submit such issue to arbitration, the arbitral tribunal is not entitled to address and solve the case.” Similarly, Landolt has submitted, “it does not ensue from the generalised acceptance of the arbitrability of competition law… around the world that any particular arbitration clause is necessarily in conformity with relevant competition law. Conformity with relevant competition law is a matter that is completely independent of arbitrability. That said, if an arbitration clause is not in conformity with competition law, it will probably be invalid and unenforceable, which is, of course, the effect that would obtain due to lack of arbitrability.”
CLEARING THE AIR: DEFINING THE CONTOURS OF AN ARBITRATION CLAUSE
The problem relating to the scope of an arbitration clause is a complex one and of much importance as it is the essence of subjective arbitrability. Some authors have expressed their concern regarding the permissibility of competition law disputes. For example, Brewer opines that by allowing arbitrability of competition law disputes, the parties to the contract need to exercise caution while framing their arbitration clause so that it is abundantly clear whether they want to arbitrate their future antitrust disputes or not. In addition to this, Brewer has also suggested guidelines that need to be kept in mind while framing such arbitration clauses. In response, it is submitted that such concern is not based on false premises and it would be best for all the parties if they expressly state their clear intention regarding the arbitrability of their future competition law disputes.
The actual problem arises if the parties have not expressly mentioned antitrust issues in the arbitration clause. This generally happens, when parties agree to submit all their disputes arising from a particular contract to an arbitral tribunal. Various authors have given diverse reasons for interpreting the subjective arbitrability of competition law disputes. For example, some authors opine that the connection of contractual obligations and non-contractual obligations arising out of the same factual grounds should not be torn apart merely because they are based on different legal provisions. There are basically three approaches prevalent regarding the interpretation of an arbitration clause. Each of them is discussed in brief below.
In the case of Rent-a-Center, W., Inc. v. Jackson, the U.S. Supreme Court has opined that in order to exercise jurisdiction over a dispute pertaining to an arbitration clause, the parties must explicitly mention it in the arbitration clause. This is known as the opt-in approach.
Moving on to the other side of the Atlantic, English courts have expressed an opinion which is exactly opposite to the position of the U.S. Courts. In case law of Fiona Trust v. Privalov, the court said, “construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal.” Landolt has argued on similar lines and has opined that, “The beginning point in interpreting the material scope of arbitration clauses is the acceptance that, once it is certain that the parties intended the arbitration of their disputes, they intended to arbitrate all disputes arising upon a particular transaction or arrangement.” This can be termed as the opt-out approach.
While citing many English cases, Nazzini has opined that to see whether a dispute falls within the scope of an arbitration clause or not, the intention of the parties is the real test. In his words, “for a claim… to be brought within an arbitration clause in a contract the claim must have a ‘sufficiently close connection’ with the transaction.” This can be termed as the real intention approach.
An analysis of three approaches reveals that each of them suffers from one limitation or the other. For example, while strictly adopting the opt-in approach, the Court may refuse arbitrability of even those disputes which were actually intended by the parties to be submitted to arbitration. Similarly, while adopting the liberal opt-out approach, the Courts may encompass even those disputes which were originally intended to be kept outside the scope of the arbitration clause. Moving on to the real intention approach, it is submitted that while this approach seems to overcome the limitations of the opt-in and opt-out approach, it is a subjective approach or in other words, it is a case by case analysis approach and therefore, it does not create any uniform rule of law.
It is submitted here that a combination of opt-out and real intention approach would be the ideal way which can be then adopted across all jurisdictions. The beginning point in every case while determining the scope of the arbitration clause would be Landolt’s presumption of material inclusivity. In simple words, the court will assume that in absence of express provisions, every dispute (including competition law claims) arising out of a contractual relationship is arbitrable. The basis of this presumption is that by agreeing to a broad arbitration clause demonstrates the clear and unmistakable intention of the parties to submit a competition law dispute to an arbitrator. Secondly, the party that wishes to rebut this presumption shall bear the burden of proof that the intention of the parties was not to submit a particular dispute to an arbitral tribunal. It is also stated that this hybrid theory would also help to achieve the goal of international antitrust law harmonisation to some extent.
CONCLUDING REMARKS: LESSONS LEARNT
This paper has attempted to explore the ambits of competition law arbitrability by reviewing, mostly, U.S. and European materials as these two jurisdictions have the most literature on the subject. The above discussion has shown that it cannot be said that the controversy surrounding arbitrability of competition law disputes has been finally laid to rest. This, however, does not mean that there has been no development at all. The global trend of adopting a pro-arbitration policy, especially with respect to competition law disputes, is certainly a positive development in the field of international commercial arbitration. This development has mostly been with regards to objective arbitrability while the subjective arbitrability can be termed as the emerging issue in the arbitration of competition law claims.
The analysis has shown that the national courts are not willing to part with their powers to review arbitral awards which involve competition law claims. Perhaps the unpleasant history of competition law arbitration is the source of this unwillingness. This paper examined both objective and subjective arbitrability of competition disputes and attempted to venture into the intricacies of these concepts. In spite of their differences, the failure to prove either form of arbitrability can prove to be fatal for the arbitration proceeding. Furthermore, it has been submitted that a liberal approach needs to be adopted by the courts while deciding either upon the objective arbitrability or upon the subjective arbitrability of competition law disputes. A failure to do so will only result in reviving the ghosts of the past.
 Hamid G Gharavi, ‘The Proper Scope of Arbitration in European Community Competition Law’ (1996) 11 Tulane European and Civil Law Forum 185, 201.
 Débora Pinto, ‘The Role of the Arbitrator in Applying EU Competition Law Under the Modernisation Process’ <www.deschenaux.com/dissertations/Thesis%20-%20Debora%20Pinto.pdf> accessed 23 July 2017.
 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’ (2008) 1 Global Antitrust Review 135, 138.
 Vera Korzun, ‘Arbitrating Antitrust Claims: From Suspicion to Trust’ (2016) 48 New York Journal of International Law and Politics 867, 899.
 ibid 869.
 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered into force 7 June 1959) 330 U.N.T.S. 38 (New York Convention).
 John R Allison, ‘Arbitration Agreements and Antitrust Claims: The Need for Enhanced Accommodation of Conflicting Public Policies’(1986) 64(2) North Carolina Law Review 219, 221.
 391 F2d 821 (2d Cir 1968).
 T Alexander Brabant, Maxime Desplats and Serena Salem, ‘Arbitration and Company Law in France’ (2015) 12(3) European Company Law 144, 144.
 Mitsubishi Motors Co v. Soler Chrysler-Plymouth, 473 US 614 (1985).
 ECR 1999 I-03055.
 Bantekas Ilias, ‘The Foundations of Arbitrability in International Commercial Arbitration’ (2008) 27 Australian Yearbook of International Law 193, 210.
 Jelena Hrle, ‘International Arbitration and Competition Law’ (LL.M. Thesis, McGill University 1999).
 Korzun (n 5) 920-921. See also, Epameinondas Stylopoulos, ‘Powers and Duties of Arbitrators in the Application of Competition Law: An EC Approach in the Light of Recent Developments’ (2009) European Competition Law Review 118, 118-121.
 Gralf-Peter Calliess and Moritz Renner, ‘Tranationalizing Private Law- The Public and the Private Dimensions of Transnational Commercial Law’ (2009) 10 German Law Journal 1341, 1349.
 Niccolò Landi and Catherine A Rogers, ‘Arbitration of Antitrust Claims in the United States and Europe’ (2007) Bocconi Legal Studies Research Paper 07-01, 22 <https://ssrn.com/abstract=962334> accessed 29 July 2017.
 Luca G Radicati Di Brozolo, ‘Antitrust: A Paradigm of the Relations Between Mandatory Rules and Arbitration- A Fresh Look at the “Second Look”’ (2004) 7(1) International Arbitration Law Review 23, 30.
 See, Tanya Choudhary, ‘Arbitrability of Competition Law Disputes in India- Where Are We Now and Where Do We Go From Here?’ (2016) 4(2) Indian Journal of Arbitration Law 69, 82 <www.ijal.in/sites/default/files/IJAL%20Volume%204_Issue%202_Tanya%20Choudhary.pdf> accessed 22 July 2017.
 Carl Nisser and Gordon Blanke, ‘Reflections on the Role of the European Commission as Amicus Curiae in International Arbitration Proceedings’ (2006) 27(4) European Competition Law Review 174, 183.
 Mitsubishi Motors (n 10).
 Yekaterina Kolmogorova, ‘Arbitrability of Competition Disputes: Positions of England, France and Kazakhstan’ (LLM Short Thesis, Central European University 2011).
 See, Gordon Wade, ‘The Arbitrability of EU Competition Law Disputes Revisited: Support from the Continent’ (2014) 35(6) European Competition Law Review 310, 312.
 Patrick M Baron and Stefan Liniger, ‘A Second Look at Arbitrability: Approaches to Arbitration in the United States, Switzerland and Germany’ (2003) 19(1) Arbitration International 27, 54.
 Jakob B Sørensen and Kristian Torp, ‘The Second Look in European Union Competition Law: A Scandinavian Perspective’ (2017) 34(1) Journal of International Arbitration 35, 52.
 See, Dominic Wong, ‘The “Middle Way” Review Standard of Arbitral Awards- Safeguarding Effective EU Competition Law Enforcement: Theoretical Appraisal, Practical Application and Potential Obstacles’ (2016) 9(1) Global Competition Litigation Review 1.
 Alexandra Theobald, ‘Mandatory Antitrust Law and Multiparty International Arbitration’ (2016) 37 University of Pennsylvania Journal of International Law 1059, 1066-1067.
 See also, Damien Geradin, ‘Public Policy and Breach of Competition Law in International Arbitration: A Competition Law Practitioner’s Viewpoint’ (2016) TILEC Discussion Paper 2016-029, 18-19 <https://ssrn.com/abstract=2786370> accessed 02 August 2017.
 Damien Geradin and Emilio Villano, ‘Arbitrability of EU Competition Law-Based Claims: Where Do We Stand After the CDC Hydrogen Peroxide Case?’ (2016) TILEC Discussion Paper 2016-033, 4 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2851112> accessed 17 July 2017.
 Carlos Ragazzo and Mariana Binder, ‘Antitrust and International Arbitration’ (2014-2015) 15(2) UC Davis Business Law Journal 173, 193-198.
 Gordon Blanke and Renato Nazzini, ‘Arbitration and ADR of Global Antitrust Disputes: Taking Stock: Part 1’ (2008) 1(1) Global Competition Litigation Review 47, 48.
 ET Plus SA v. Welter  1 Lloyd’s Rep. 251.
 See, Penio Penev Gospodinov, ‘The Application of European Competition Law in Arbitration Proceedings’ (PhD in Law and Economics Thesis, Erasmus University 2014).
 Phillip Landolt, ‘Arbitration Clauses and Competition Law’ in Gordon Blake and Phillip Landolt (eds), EU and US Antitrust Arbitration: A Handbook for Practitioners (Vol 1, Kluwer Law International 2011) 70.
 Thomas J Brewer, ‘The Arbitrability of Antitrust Disputes: Freedom to Contract for an Alternative Forum’ (1997) 66 Antitrust Law Journal 91, 107-126.
 Irene Welser and Susanne Molitoris, ‘The Scope of Arbitration Clauses- Or “All Disputes Arising out of or in Connection with this Contract”’ in Christian Klausegger and others (eds), Austrian Yearbook of International Arbitration (MANZ’sche Wien 2012) 24-25.
 130 S. Ct. 2778 (2010).
  4 All ER 951 (HR).
 Landolt (n 34) 80.
 Renato Nazzini, ‘Are Claims for Tortious Damages for Breach of the Antitrust Rules Arbitrable in European Union? Some Reflections on the CDC Case in the Court of Justice’ (2016) 3(1) Italian Antitrust Review 70, 81.
 Landolt (n 39) 80.
 See also, Michael A Gibson and Bernice Conn, ‘Clause and Effect: Parties Agreeing to Standard Arbitration Clauses may Unwittingly Alter their Rights’ (2006) 29(7) Los Angeles Lawyer 35.
Theobald (n 26) 1085.
 Giedre Cernieuske, ‘On Competition Arbitrability in Lithuania- Recent Developments’ (2013) 6(1) Global Competition Litigation Review 18; Gordon Blanke and Renato Nazzini, ‘France: Paris Court of Appeal Confirms Arbitrability of Competition Law and Minimalist Approach to Review of Competition Law Awards’ (2008) 1(3) Global Competition Litigation Review 67; Niccolò Landi, ‘Arbitrability of Antitrust Claims’ (2005) 9 Vindobona Journal of International Commercial Law & Arbitration 313.
 Thomas E Carbonneau and François Janson, ‘Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability’ (1994) 2 Tulane Journal of International and Comparative Law 193, 200.
(Meenal is currently a student of University Institute of Legal Studies, Punjab University, Chandigarh.)