Antitrust/Competition Arbitration in EU versus U.S. Law

The European Union and the United States have generally converged toward consumer welfare-based antitrust enforcement. In the United States, arbitration has been used extensively to resolve antitrust claims. In the European Union, only national courts, and not ad hoc arbitral tribunals, can refer questions to the European Court of Justice to obtain an interpretation or assessment of the validity of EU law provisions. Where national arbitration laws do not have manifest disregard of law as a reason for reviewing an award, courts cannot review the merits of awards for violation of EU competition law. The need for the recognition of an independent and alternative system to litigation, such as arbitration, is important both for the direct implementation of Article 81 of the EC Treaty in accordance with the scope of the Commission White Paper and to share the load of cases concerning competition disputes.