A Question of Fairness: Should Noerr-Pennington Immunity Extend to Conduct in International Commercial Arbitration? – Vol. 19 No. 2

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Author: Randy D. Gordon*

Published: August 2009

Commercial Disputes
Competition and Antitrust
Applicable Law
International Litigation



As arbitration has supplanted litigation as the primary method of dispute resolution between parties to international commercial relationships, questions have inevitably arisen as to when concepts first developed in litigation should apply to arbitration. Answering these questions is not always an easy task because, on the one hand, the use of arbitration is now a governmentally encouraged form of dispute resolution but, on the other hand, arbitration’s relative informality and private contractual nature still render it suspect in some eyes. This article is concerned to examine a potent litigation weapon–the Noerr-Pennington doctrine, which generally insulates litigation conduct from later claims–and to determine whether and to what extent it should, by analogy, immunize conduct within an arbitral proceeding from later claims. Part One traces the development of the Noerr-Pennington doctrine in the litigation context. Part Two considers the arguments, pro and con, for applying the doctrine to arbitration acts. Part Three concludes with some suggestions for facilitating application of the doctrine to arbitration.


In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., the United States Supreme Court held that competing railroads had not violated the antitrust laws by jointly “seeking to influence the passage and enforcement of laws . . . to destroy . . . truckers as competitors for the long-distance freight business.” This was so, according to the Court, because the federal antitrust laws do “not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.” This conclusion flowed from the Court’s recognition that antitrust laws must be construed in harmony with an overarching constitutional right: “The right of petition is one of the freedoms protected by the Bill of Rights; . . . we cannot, of course, lightly impute to Congress an intent to invade these freedoms.” Accordingly, “no violation of the [antitrust laws] can be predicated upon mere attempts to influence the passage or enforcement of laws.” The antitrust laws thus do not apply “where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action.”

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*B.A., M.A., Ph.D., Kansas; J.D., Washburn; LL.M., Columbia; Ph.D., Edinburgh. Partner with the firm of Gardere Wynne Sewell LLP, adjunct faculty member at Southern Methodist University, and part of the Member Consultative Group for the American Law Institute’s Restatement Third, The U.S. Law of International Commercial Arbitration. The author wishes to thank James McKain, his research assistance and a student at the University of Kansas, for his considerable contribution to the authorities cited below and John Thompson, a former associate of the firm, for his preliminary research and analysis of the issues presented. The views expressed in this article are the author’s alone and do not necessarily represent those of the firm or its clients.