Research On Arbitrability Of Antitrust Disputes In China

Antitrust law is a core legal system that guarantees market competition order and safeguards public interests.It has a strong "public law" color.Arbitration,as a method of dispute resolution among non-governmental subjects of equality,has its own corresponding principles because of the principle of autonomy of will.Scope of application.Due to the conflict between the public law nature of the antitrust law and the value of the private arbitration system,the arbitration system has long been excluded from the antitrust dispute settlement mechanism.However,with the booming development of world economic integration and increasingly close international commercial and trade links,traditional dispute resolution mechanisms cannot meet the needs of development.Due to its advantages of efficiency,convenience,and focus on negotiation,arbitration has played a role in matters that were not previously included in arbitration.This role has gradually entered the field of arbitration,such as intellectual property disputes and securities disputes.In the context of the expansion of the scope of arbitration,the issue of arbitrability of antitrust disputes has caused controversy in the industry and academia.The attitudes of the theoretical and practical circles to the arbitration of antitrust disputes have also changed.Beneficial attempts to incorporate antitrust disputes into arbitration have brought new ideas to the resolution of antitrust disputes.Through the analysis of the " America safe company case","Mitsubishi car company case" and "Eco Swiss case" in the United States and the European Union,it is concluded that the US attitude on arbitrability of antitrust disputes is first negated and then affirmed.The "Anti-Monopoly Law",which was implemented in China on August 1,2008,clearly stipulates that anti-monopoly disputes shall be settled mainly by administrative law enforcement and private civil litigation.However,in recent years,cases concerning the arbitration of antitrust disputes have emerged in practice,such as the "Hohhot Huili Company and Shell Company Monopoly Agreement Dispute Case" and "Changlin Company and Shell Company Monopoly Dispute Case".Due to the lack of relevant provisions in Chinese "Antitrust Law","Arbitration Law" and "Civil Procedure Law",similar cases have resulted in different results.In practice,it is called for the recognition of arbitrability of antitrust disputes in order to unify judicial discretion.standard.In addition,the establishment of antitrust disputes can be arbitrated,which is conducive to China’s legislative and judicial practice in line with international standards and conform to the trend of international development.The research on the arbitrability of antitrust disputes in China mainly involves two aspects: one is the discussion on whether antitrust disputes can be arbitrated;the other is the recognition of the relevant system construction after antitrust disputes are arbitrable.Based on such research ideas,it is the key to determine whether antitrust disputes can be resolved through arbitration.Antitrust disputes are literally understood as “disputes arising from monopoly”.Antitrust disputes are very complicated and their definition is difficult to be clear and accurate.At present,the academic circles are based on different monopolistic behaviors,foreign factors and subjects involved Different types of antitrust disputes are classified,and we can grasp the content of antitrust disputes on the basis of their classification.Compared with general disputes,antitrust disputes have their particularities.First,they have the dual attributes of public law and private law.Not all antitrust disputes involve public interests,and there are also a considerable number of private interests.Second,they are highly professional.The third is the existence of two major international and domestic markets.After clarifying the issues related to antitrust disputes,it is clear whether antitrust disputes have arbitrability and determine whether this dispute can be resolved through arbitration.The concept of arbitrability is closely related to public policy but is not necessarily equivalent to public policy.Throughout the practice of various countries,the judgment standards of arbitrability include reconciliation standards,property rights standards,public policy standards and adversarial standards,etc.,which are not limited to public policy standards.Traditionally,it is believed that antitrust disputes must involve public interest,and the level of arbitration cannot cope with the intricate antitrust disputes,so arbitration is excluded for a long time.However,in theory,antitrust disputes do not necessarily involve public policy,and public policy is not the only standard for whether disputes can be arbitrated.In addition,the “informal” resolution mechanism for antitrust disputes has been widely recognized,and the arbitration system as a private The dispute resolution mechanism is also an “informal” dispute resolution method,and can naturally participate in the process of arbitration of antitrust disputes.Arbitration of antitrust disputes also has its advantages,such as broadening the way to resolve disputes,further expanding the scope of arbitration of disputes,and arbitration awards can be more recognized and enforced by foreign courts.Specifically under the soil of the rule of law in China,especially in the context of the "Belt and Road",it is necessary and significant for China to establish arbitrable antitrust disputes.Clarifying that antitrust disputes can be arbitrated is not only a requirement to comply with the world trend,but also a need to promote the economic development of the country and the smooth implementation of the Antitrust Law.At present,Chinese anti-monopoly dispute arbitrable legislation is still blank,but the level of arbitration in our country is steadily improving,and there are extra-territorial experiences that can be used for reference.Public interests can also be effectively protected through judicial review.Therefore,China has established anti-monopoly disputes that can be arbitrated.It also has its feasibility.Since antitrust disputes and arbitration resolution are not incompatible,there is also a practical need for China to establish antitrust disputes for arbitration,so China should recognize antitrust disputes for arbitration as soon as possible and improve the corresponding supporting system.According to this idea,the following suggestions are creatively proposed:(1)Before China amends relevant laws and incorporates antitrust disputes into arbitration,the actual situation of Chinese legislation should be taken into account,and relevant administrative regulations should be issued by administrative agencies,or The Supreme People’s Court will use the assistance model of judicial institutions to establish the arbitrability of some antitrust disputes through judicial interpretation or notification.(2)It is acknowledged that not all antitrust disputes are arbitrable.Some antitrust dispute cases involve arbitration of private interests;some can be arbitrated as part of antitrust disputes,such as related market definition issues within the scope of pure economics.Some antitrust disputes may be characterized as a monopoly that cannot be arbitrated,but a quantitative amount such as compensation can be arbitrated.(3)The protection of public interest is crucial.It advocates the establishment of a judicial review system for arbitral awards in antitrust disputes,with a view to providing protection for the public interest.The court level,principles and scope of judicial review of antitrust dispute arbitral awards are clarified to ensure the smooth implementation of arbitral awards.(4)Propose that the implementation of antitrust dispute arbitral awards should be resolved,such as the composition of arbitral tribunals,the choice of arbitration procedures,and the training of professional arbitrators.Through the establishment of relevant supporting procedures and systems,it can better serve the arbitration settlement of antitrust disputes in China.