Research On The Arbitrability Of Antitrust Dispute

The fundamental purpose of this the antitrust law is forcing the company to improve the economy efficiency to enable customers obtain higher commodity and service. This is not only about the lawful rights and interests, but about the social and economic order. With the development of the international trade and commerce, the number of dispute has increased. Complexity and diversity also increase a lot. The arbitrability of antitrust disputes have acquired more attention and raise new challenge to international arbitration institution. Arbitration institution has remain a central position of international dispute resolution. This change the hostility of the Domestic court. The concept of Domestic court about the arbitrability of antitrust disputes will give way to support the commercial arbitration.In the Safety and Mitsubishi case,the United States recognized the arbitrability of anti-trust dispute. On this basis, responding to arbitrability of Domestic anti-trust dispute and group arbitration. Unlike the United States, the Europeans Union has never express the opinion that they have recognized the arbitrability. We can found it through some cases. The European Union holds a positive explanation of the Treaty of Rome about this issue. The juridical practice of European countries is more specific. The influence of public policy has significantly reduced. Public policy is not the only standard of arbitrability. Some arbitrators of the European countries has the right and duty to apply the EU competition law and examine the whether the arbitration agreement accord with the EU competition law. We have blend in the world. The antitrust disputes have got our attention. We join the New York Convention in 1986. The New York Convention has become the mainstay of recognition and enforcement foreign arbitration. The Article 5 stipulate the standard without the antitrust disputes. If a country reject arbitrability antitrust disputes, the only reason is public policy. Seeing from the juridical practice, this will impact our economic interest worldwide. Meanwhile, it will take a long time to solve dispute with litigation. For example, affirming the relevant market and market power. Arbitration is more reliable and efficient than litigation. The trade secret will not exposed to the court record and the dispute is not about the possible third party. The enforcement mechanism of antitrust law take administrative execution as the principal thing. that is to say, antitrust law enforcement agency take responsibility to inspect and manage antitrust conduct. Due to the vague divide the work of enforcing authority, the conflict of power and unpractical occur among the enforcing authorities. This will affect the efficiency of enforce the law. In addition, the advantage of arbitration is obvious. With the development of international business, arbitration is the footstone of the international commercial cultural. It has generate silent promotion. The expert and high adaptation accord with the complexity of antitrust case.From 360 v. QQ about the abuse of market dominant position in 2012 to three antitrust institution hold antitrust idea, making out 1.8 billion ticket in 2014. The enterprise under investigation include Hitachi, maritime P3 alliance and Microsoft. The respondent involve all tache of industry chain including all antitrust conduct. this has illustrated the determination of answer the international and domestic antitrust disputes. It is a urgent thesis to exploring an antitrust arbitration system which based on the experience of other countries and fitting our condition. This dissertation is going to focus on the arbitrability of the anti-trust dispute. In the same time the standard to fit our domestic condition will be worked out. Through comparing some opinion and practices in the United States and the European Union, some suggestion will be put forward.Generally speaking, this dissertation shall include four parts:The first part will introduce the essential dispute about the antitrust disputes to distinguish the relationship between the parties. From the traditional way of solving antitrust disputes, analyze the advantages and disadvantages of civil, criminal, and administrative means. Leading to the necessity and advantage of arbitration.The second part will analyze the standard of arbitration. The reason that antitrust disputes cannot take to arbitration is whether it can be identical with the standard of arbitration. The standard include property, commerciality and disposition in free, among which the most important one is public policy. public policy is a flexible standard. Countries have a different understanding according to their traditional idea and the regional characteristic. It is difficult to give a complete unified connotation to this concept. Therefore, analysis public policy through case and dredge obstacle between public policy and antitrust arbitration.The third part will analyze related cases in America and Europe countries. Through the analysis of the cases in this paper, restore the viewpoint in the case. Through the empirical way to reflect the establishment of arbitrability of antitrust disputes in some countries and regions. We can find that politics is a country’s exclusive but economic development across the world. Most of the traditional theory hold that antitrust disputes is about public policy so it is not arbitrability. Public policy is more of a country’s public policy but economic activity is across the globe. Since the emergence of American safety rules, we had a new understanding and thinking of antitrust dispute. Finally a breakthrough occur in the mitsubishi and then developed. Arbitration as a potentially effective mechanism has been widely accepted resolving private competition disputes. Then, from the legislation and judicial practice of the European Union and European countries, arbitrability of antitrust disputes has been basically get implied license from country to country. Through the "Eco Swiss" case, judge’s answer of five unavoidable problems is the start of Europe’s antitrust arbitration.The fourth part will contrapose the European practice and the situation of our country. Put forward that our country should admit the arbitrability of antitrust disputes, and put forward institutional suggestions on construction of antitrust dispute arbitration. Especially the judicial review system. Commercial arbitration judicial review is the censorship and control of court and the restriction and error correction of jurisdiction. It must be noted that because of its autonomy attribute, it is strict limited to the procedural matters within the scope of judicial review. It shall be tightly restricted for the items out of the range of procedural matters. The main content of judicial review can include the jurisdiction, the arbitration procedures, the arbitrator serious misconduct and public policy.