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Arbitrability of the Competition Law Disputes
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Att. Nilsun Gursoy
Introduction
Delictual character of the competition law disputes usually renders
them inadequate for the arbitration since the parties could not foresee
such an event and conclude an arbitration agreement before the arise of
this event. However, in certain cases competition law disputes may
result from a contractual relationship. When a contract has anticom-
petitive implications or when a preliminary question on competition
law arise before the resolution of the principal dispute, the question
may be considered within the scope of the arbitration agreement. In
these cases, arbitrability of the competition law disputes must be
assessed. On the international level, today the case law tends to give a
positive answer to this question. However, Turkish doctrine is divided
on the relevant issue, and there are no Court decisions explicitly pro-
hibiting or allowing such practice. We will assess the arbitrability of
the competition law disputes under the Turkish law, and enforcement
of such arbitral awards; EU and US case law will also be taken into
consideration which may have an impact on Turkish practice.
Arbitrability under US and EU Law
US Law
Arbitrability of the competition law disputes started to be dis-
cussed in 1970s in the United States. The
American Safety
1
decision
implied that the competition law disputes are not suitable for the arbi-
tration, and a claim under the competition law is not a private matter.
116
NEWSLETTER 2015
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Article of November 2015
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American Safety Equip. Corp. v. J.P. Maguire, 391 F.2d 821 (2d Cir. 1968) (international.west-
law.comAccess Date: 04.12.2015).