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Certain Procedural Issues in Arbitrating Competition Cases

Arbitrations of competition cases are a relatively new phenomenon. The authors of this work were members of the ICC’s recent Task Force on Arbitrating Competition Disputes and this note is taken in large part from their report to the Task Force on procedural issues. This work touches on many procedural issues, including those that are somewhat predictable in arbitrations of competition disputes and those that are not. These include the power of the arbitrator to rule on the competition issue, the burden of proving a violation, as well as educating the tribunal on different competitive impacts in different jurisdictions, and the duty to render an enforceable award and how that plays in an arbitration of a competition case given the important public policy issues at stake. The effect of a ruling of a state competition authority is analyzed. Discovery issues are discussed as well, given their importance in complex disputes, and the note concludes with a discussion of the dispositive motion in competition disputes and how that type of motion might square with the policy of arbitration as well the enforceability issues it presents.