Modernised EC Competition Law in International Arbitration
This very useful guide offers a convenient one-volume analysis of the expectations and requirements of the Community legal order upon international arbitration, as well as a dependable source of answers to the EC competition law questions which arbitration practitioners will ordinarily be faced with. It provides counsel and arbitrators with a basis upon which to identify and manage competition law issues arising in international arbitrations, with detailed coverage of such matters as:
- the main features of EC competition law;
- enforcement of EC competition law and the place of international arbitration in this enforcement;
- the relevant interrelations between arbitration proceedings and the European Commission, Member State competition authorities, and Member State courts;
- the roles of important players on litigation teams dealing with EC competition law questions;
- relevant economic concepts;
- particular matters under Dutch, English, French, German and Swiss law, including private remedies; and
- the application of mandatory norms by arbitration tribunals.
With clear references to all materials relevant to EC competition law questions ordinarily arising in international arbitrations, this book will be of interest to international litigation practitioners in Europe and globally, in particular arbitrators and arbitration counsel, as well as to EC competition law practitioners. Law makers and regulators will also find here a valuable perspective on shaping the future relationship between arbitration and competition law.
Phillip Landolt is a member of the Bars of England and Wales and Ontario, Canada. With a doctorate in the civil law of obligations, he is also a registered foreign lawyer in Geneva, Switzerland, where he practises international arbitration with the law firm Tavernier Tschanz (www.taverniertschanz.com). He has post-graduate academic qualifications in EC competition law, and practised EU and competition law for over three years in London and Brussels before relocating back to Geneva to resume his international arbitration practice.
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FOREWORD, TABLE OF ABBREVIATIONS, TABLE OF EU CASE LAW CHAPTER 1 – INTRODUCTION I. Competition Law in the EU Legal Order II. Arbitration III. Why this Book? IV. Scope of this Book V. A Note on Terminology VI. Topography of EC Competition Law CHAPTER 2 – THE OBJECTIVES OF COMPETITION LAW I. The Hallmarks of Modern Competition Law II. EC Competition Law as a System of Modern Competition Law CHAPTER 3 – THE ENFORCEMENT OF COMMUNITY LAW I. Relations between Community Law and Member State Law II. Modernisation CHAPTER 4 – THE CONTENT OF EC COMPETITON LAW I. The Relationship between Article 81 EC and Articles 82 EC 43 vi Modernised EC Competition Law in International Arbitration II. Article 81 EC 44 III. Article 82 EC IV. Member State Government-Sponsored Distortions to Competition V. EC Competition Law and Sectoral Regulation CHAPTER 5 – ARBITRABILITY I. Powers of an Arbitral Tribunal to Decide Material Issues II. Applicable Law III. Arbitrability under Surveyed States’ Law IV. Competition Law CHAPTER 6 – THE APPLICATION OF MANDATORY NORMS I. Overview II. Mandatory Norms in the Conflicts of Law System III. Must Arbitrators Raise Mandatory Norms of their Own Motion? CHAPTER 7 – TAKING EC COMPETITION LAW SERIOUSLY I. Competition Law as Mandatory Norms II. The Application of EC Competition Law III. The Imperativity Assessment by Arbitral Tribunals IV. Are Arbitrators under an Obligation to Apply EC Competition Law of their own Motion? V. The Supplementary Application of the Lex Arbitrii and the Lex Causae CHAPTER 8 – EC COMPETITION LAW ASSISTANCE IN INTERNATIONAL ARBITRATION I. Non-mandatory Statements of EC Competition Law II. Influence on Arbitral Tribunals of other Bodies’ prior Applications of Legal Norms III. Arbitration Tribunals’ Treatment of Prior Determinations on EC Competition Law IV. Effect on arbitral Proceedings of Contemporaneous Proceedings before other Bodies V. Intervention of Commission and Member State Competition Authorities in Arbitration Proceedings CHAPTER 9 – OVERVIEW OF SUBSTANTIVE ANALYSIS IN PRACTICE I. Gathering Evidence II. Market Power – A Foundational Concept III. Determinations CHAPTER 10 – LEGAL RELIEF I. Public and Private Enforcement of EC Competition Law II. Burden of Proof III. Standard of Proof IV. Time Barring V. Provisional Measures VI. Severance VII. Damages VIII. Restitution, BIBLIOGRAPHY, INDEX