ARBITRATION, COMPETITION LAW AND SECOND LOOK DOCTRINE: AN INDIAN PERSPECTIVE
Historically, competition law enforcements agencies have eluded arbitration as a means of adjudicating competition law disputes owing to the technical nature of the disputes and the larger public interest involved. Competition Law deals with the competitiveness in the market and its impact on the consumer welfare. Therefore, the disputes include the adjudication of ‘rights in Rem’ along with the individual claims of the aggrieved parties. Moreover, the Competition Act, 2002 provides for the exclusion of jurisdiction of the Civil Court in any competition related matter. These are the hurdles which restrict the arbitrability of anti-trust disputes in India. In Competition Commission of India v. Union of India, the Delhi High Court stated that the scope of investigation of the Commission is very different from the scope of investigation of the arbitral tribunal due to the lack of expertise of the tribunal. These problems have been faced by the judiciary of most countries while dealing with the arbitrability of competition disputes. Despite these shortcomings, the global acceptance of arbitrators determining competition issues has risen considerably post the Supreme Court of United States affirmation in 1985. The ‘Second look Doctrine’ developed by the Court in Mitsubishi Motor Corp. v. Soler Chrysler Plymouth provided a balance between the need for arbitration and the need for securing public interest. The Doctrine provided for a review of the arbitral award to foresee the proper compliance with the Competition laws of the land. Thereafter, most countries have moved in favour of arbitrating Competition matters and promoting the international consensus of the pro-arbitration culture. There is no conclusive judicial pronouncement of the issue in India and this paper discusses adopting the measures taken by other countries and allowing arbitral tribunals to decide competition disputes along with the assistance from the Competition Commission of India.