The TSJM’s concerns about the supervision of the application of European Union competition law in arbitration seem unjustified
As a result of the Spanish Constitutional Court’s annulment[1] of a judgment by the Superior Court of Justice of Madrid (“TSJM”),[2] which had in turn annulled an arbitral award that invalidated an exclusivity clause in the Cabify case, the TSJM[3] has submitted a preliminary question to the Court of Justice of the European Union (“CJEU”) to clarify whether limited review of arbitral awards, even in cases of infringement of public policy, might infringe the principles of primacy and effectiveness of European Union law.
The TSJM’s concerns about the supervision of the application of European Union competition law in arbitration seem unjustified for several reasons:
- Despite the opinions of the Advocates General in the hydrogen peroxide cartel and Genentech cases,[4] the CJEU’s judgments in those very cases never questioned the validity of limited arbitral award review.[5]
- The CJEU’s ruling in the International Skating Union case[6] cannot be automatically applied to voluntary commercial arbitration. The CJEU’s decision in that case is explained by the fact that the international sports arbitration in question was compulsory, in which case all guarantees of due process must be applied as established by the European Court of Human Rights in the Pechstein case.[7] The imposition of an arbitration clause by a dominant operator, as well as its dual role as regulator and market operator, are peculiar factors in certain areas of international sports arbitration that do not affect ordinary arbitration.
- The award resolves only a dispute between private parties, and any incorrect application of competition law in arbitration does not create a binding precedent that affects third parties.[8] Nothing prevents third parties, authorities, and courts from revising incorrect determinations of an arbitral award—even if final and with res judicata effects—regarding the application of competition law. The CJEU did not consider the limited and private effect of the award in the International Skating Union case because the ISU, as a dominant operator and governing body of skating at the international level, had the power to enforce its decisions in practice without the need for intervention from authorities or courts.
- It would be contradictory and incomprehensible for the European Union to be seriously concerned about a private award with limited effects, while the Brussels I Regulation itself allows for the circulation and mandatory recognition of court judgments that incorrectly apply EU competition law. [9]
Arbitrators not only have the duty to apply EU competition law but also play a significant role in ensuring its effective enforcement, both in ordinary commercial arbitration and in arbitrations specifically designed to remedy potential anticompetitive effects in merger cases and infringement proceedings. As the CJEU did in the Eco Swiss, Mostaza Claro, and Achmea cases, it would be desirable for the CJEU to reaffirm its confidence in the application of EU competition law by arbitrators without undermining the private and extrajudicial nature of voluntary commercial arbitration.
Josep Maria Julià, abogado and arbitrator, Delegaltessen
TAB delegertier in Madrid
[1] Judgment 146/2024 of 2 December (ECLI:ES:TC:2024:146).
[2] Judgment 66/2021 of 22 October (ECLI:ES:TSJM:2021:9028).
[3] Resolution 4/2025 of 20 March (ECLI:ES:TSJM: 2025:21A).
[4] ECLI:EU:C:2014:2443 and ECLI:EU:C:2016:177.
[5] ECLI:EU:C:2015:335 and ECLI:EU:C:2016:526.
[6] ECLI:EU:C:2023:1012.
[7] ECLI:CE:ECHR:2018:1002JUD004057510.
[8] TC’s judgment 55/2021 of 15 March (ECLI:ES:TC:2021:55).
[9] Article 45.1 of EU Regulation 1215/2012 and CJUE’s interpretation of predecessor, article 27.1 of Brussels Convention, in the Krombach (ECLI:EU:C:2000:164) and Renault Maxicar cases(ECLI:EU:C:2000:225).
