EU Competition Law and International Commercial Arbitration-The question of public policy

EU Competition Law and International Commercial Arbitration-The question of public policy内容摘要：

FACULTY OF LAW Lund University Björgvin Halldór Björnsson EU Competition Law and International Commercial Arbitration -The question of public policy- JAEM01 Master Thesis European Business Law 15 higher education credits Supervisor: Henrik Norinder Term: Spring 2015 Content Preface2 Abbreviation 3 Summary 4 1 Introduction 5 1.1 Background 5 1.2 Purpose and research questions 6 1.3 Approach and Methodology 6 1.4 Delimitations 7 1.5 Outline 7 2 International commercial arbitration 9 2.1 Introduction 9 2.2 What is an international commercial arbitration ? 9 2.3 Important parts of International Commercial Arbitration 11 2.3.1 Introduction 11 2.3.2 The UNCITRAL Arbitration rules 11 2.3.3 The UNCITRAL Model Law 13 2.4 The enforcement of international commercial arbitration awards 14 2.5 Setting awards aside 16 2.6 Public policy (Ordre public) in international commercial arbitration 17 3 EU Competition Law 19 3.1 Introduction 19 3.2 Arbitrability of competition law disputes 20 3.3 Article 101 (1) TFEU 22 3.3.1 Do we have an undertaking? 22 3.3.2 Is there an agreement, decision or concerted practice 23 3.3.3 Is the object or effect of the agreement to restrict, distort competition 24 3.3.4 Individual exemptions or relevant block exemptions 25 3.3.4.1 Article 101(3) 25 3.3.4.2 Block exemptions 26 3.4 Article 101(2) 27 3.5 Article 102 TFEU 28 3.5.1 What is the relevant market? 29 3.5.2 Establishing dominance in the relevant market 31 3.5.3 The different abuses 32 3.5.4 Objective justifications 32 3.6 Merger Regulation 4 33 EU Competition law as a public policy in international commercial arbitration 36 4.1 Introduction 36 4.2 Potential EU Competition law issues in arbitration proceedings 37 4.3 The Public Policy consideration 39 4.3.1 EU public policy (ordre public) 40 4.3.2 ECO Swiss case 41 4.4 The extent of the Public Policy 42 4.4.1 A minimalist approach 43 4.4.2 A maximalistic approach 47 4.4.3 Ex officio application by the arbitrators? 48 4.4.4 Should arbitrators include a standard chapter on EU Competition law in their award? 4.5 Situation in EEA regarding the public policy 5 Conclusion 52 6 Bibliography 54 49 50 Books 54 Communication/Guidelines/Notices from the EU 55 Electronic Articles 56 Articles 56 Websites 7 58 Table of legislation 59 EU Regulations 59 International Conventions 60 National Legislation 60 UNCITRAL 60 Arbitration rules 60 8 Table of cases 62 ECJ cases 62 Cases from the General Court/Court of First Instance 62 Opinion of the Advocate General 63 National judgments 63 Arbitral Awards: 64 Preface This thesis marks the end of my studies in European Business Law at the law faculty of Lund University. It has been a pleasant journey which I have enjoyed to the fullest. It has broadened my vision of EU law in general and made my understanding of the EEA agreement, which my native Iceland belongs to, more precise in some areas and mind boggling in other. My broadened vision of EU law will without a doubt be of service to me in my future legal professions with or without Iceland joining the Union. It has been a pleasure getting to know all the fellow legal students at the program and the teachers alike. I hope I’ll meet them in the future so we can reminisce about our studies here in Lund and perhaps discuss were the Union is headed or some of the landmark ECJ rulings. Most importantly I would like to thank my wife, Nína Margrét Rolfsdóttir, for her support during our stay her in Lund and her and our son for unlimited patience during the writing of this thesis and exams preparation. Also, I would like to thank my parents for their support throughout my legal studies which has been invaluable to me. Lastly, I would like to express my thanks to my supervisor, Henrik Norinder, for his good advice and assistance, encourage, positivity, good humors and classic movie quotes. Henrik: may the fourth be with you. Lund, 27 May 2015 Björgvin Halldór Björnsson Abbreviation EEA European Economic Area EFTA European Free Trade Association EU European Union TFEU Treaty on the Functioning of the European Union TEU The Treaty on European Union OJ Official Journal of the European Union EUMR Merger Regulation EUCJ/ECJ Court of Justice of the European Union GC General Court UNCITRAL United Nations Commission of International Trade