The Second Look Doctrine: The European Perspective – Vol. 21 No. 1–4

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Author: Pierre Mayer*

Published: April 2011

Competition and Antitrust
Recourse Against Award Generally

Description: This presentation considers the position of European States, beyond the European Union (to include Switzerland for example), as to the scope and standard of review of arbitral awards involving public policy issues, in particular competition law.

In order to better understand the heated discussions on this subject, it first must be mentioned that, as in the United States, it took time before the courts in European countries even accepted that arbitral tribunals could apply rules putting into effect important public policies, such as rules protecting free competition. Until the mid-eighties, the position was that arbitral tribunals did not have jurisdiction to apply such rules. In the event that a defendant raised a claim of nullity of the contract which the claimant sought to enforce, based on an alleged infringement of competition law, the arbitral tribunal had to stay the proceeding, and wait until a court had decided whether the contract was valid or invalid. That would of course constitute a good way for the defendant to delay the proceedings. However, between the mid-eighties and the end of the nineties, there occurred in most states a complete reversal of the situation. It is now well accepted that the public policy character of a rule does not prevent an arbitral tribunal from applying it. In France, for instance, the Paris Court of Appeal decided, in the Labinal case in 1993,1 in which an issue of competition law was raised, that: An arbitrator has the power to apply principles and rules of a public policy character, and to sanction their possible violation, subject to the review that the courts of the State must perform.

It thus appears that, at the same time that it widened the scope of the arbitrators’ jurisdiction, this decision introduced the notion of a second look by the court seized of a request to set aside the award. The same position had been adopted, or was later adopted, by the courts of most other European countries. There remained to be determined the extent to which the review would be exercised. Naturally, a more liberal approach having been adopted, there was pressure towards an increasingly liberal approach. In several countries, a minimalist conception of the review has gradually become recognized. Other countries resist, however, and still conduct an in-depth review. The “minimalist”/“maximalist” distinction thus opposes the courts of the various European countries against each other (Section I); this distinction can also be …

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*Professor at the Ecole de Droit de la Sorbonne (University of Paris I); partner, Dechert LLP, Paris.