Access to Justice and Arbitrating EU Competition Disputes: Aye or Nay?

This chapter discusses access to justice in relation to competition law claims in the context of the EU legal framework and in this respect fills a gap in the literature. Most competition law enforcement systems in the world are based on two enforcement pillars: public enforcement and private enforcement. Public enforcement of competition law concerns the enforcement of competition law by the relevant government or the competition authority, whilst private enforcement entails litigation initiated by private parties, to have a court establish an antitrust infringement and to order the recovery of the damages suffered. Arguably, since the adoption of the 2014 Damages Directive, which aims to establish a level playing field among Member States, there has been an increase in private damages claims. Private enforcement claims are generally arbitrable. Advantages of arbitration comprise confidentiality, expertise, and flexibility of procedure. Disadvantages include potential costs, uncertainty over judicial review of arbitral awards, and difficulties in obtaining disclosure orders and other claims against third parties. Against this background, this chapter examines whether the use of arbitration in competition law claims lowers the procedural and substantive barriers to access to justice. In this regard, the chapter will first discuss the development of competition law in the EU. It will then analyse the arbitrability of competition law issues in the EU. The chapter then proceeds to analyse key issues that arise in relation to access to justice for competition law claims before concluding on whether arbitration plays a key role in solving these issues.