gurkov, alexander

Arbitrating Competition Law Disputes in Russia

Antitrust law policies in arbitration:
Competition law serves the purpose of protecting more than interests of certain individuals and legal entities participating in a transaction. Antitrust regulations secure public interests. Entrusting protection of these values in the hands of a private adjudicator can be questionable. The effects of anti-competitive behavior may reach outside the parties to a contract. Arbitration is based on an agreement. An arbitral award cannot have effect on companies and individuals that were not parties to the agreement. Another policy suggests that competition law should not become a tool for a party wishing to avoid arbitration.

Method of finding a solution:
Arbitration is under-regulated in Russia. That is for the benefit of arbitration. Parties’ ability to regulate resolution of a dispute in the manner that is more suitable for them is essential for arbitration. For this reason many arbitration-related questions are left unanswered in legislation, including whether the parties are able to resolve competition law matters in arbitration. This is when case-law comes into play in Russian legal system.

International arbitration:
There are no published cases where Russian courts deal with involvement of competition law issues in international arbitration.

Domestic arbitration:
A limited number of reported cases deals with resolution of antitrust matters in domestic arbitration.

Arbitrability and public policy:
Two main questions when dealing with competition law issues in arbitration are arbitrability of these matters and the extent of court review of an arbitral award. Existing case-law suggests temporary answers to these questions: 1. competition law issues are arbitrable; 2. courts can exercise a limited review of the substance of arbitral awards. The same approach can be true for international arbitration.

Wednesday 24 October 16:45-18:45 Panels II, Panel 5 Problems of Healthy Economic Competition (Hall 14)