Arbitration and the Modernisation of EC Competition Law (in Special Issue: Arbitrating Competition Law Issues: A European and a US Perspective, p175-192)

Abstract: Do arbitrators have the power to apply Article 81(3) EC and grant an individual exemption in the event they find an agreement to come within Article 81(1) EC? Before Modernisation, the answer was clearly negative. Under the old regime of EC competition law this particular power was the exclusive domain of the European Commission. The Modernisation Regulation and the accompanying Modernisation Package – consisting of a Commission Regulation, four Notices and two Guidelines – came into force on 1 May 2004. One of the key changes of Modernisation was that the national courts of the Member States were given the power to apply Article 81(3) EC and grant individual exemptions from the prohibition of Article 81(1) EC. But do arbitrators have this power as well? The Modernisation Regulation only mentions the national courts. It is silent on arbitration. This conspicuous silence has caused varying reactions. In this contribution I will discuss the consequences of the Modernisation Regulation for the practice of international commercial arbitration.