Volume 49 (2012) / Issue 6
In the last decade, the use of arbitration in merger control has gained ample support from European institutions, scholars and practitioners, and there is consensus as to its benefits and efficiencies for the enforcement of behavioural remedies. However, in the vast majority of cases this position is based on vague allegations about the general advantages of arbitration, which lack substantive analysis of the operability of the mechanism when in comes to its implementation. This paper argues that when looking beyond that prima facie effectiveness, arbitration commitments - as currently drafted - are deficient and will result in pathological proceedings should they be triggered by third parties. The improvement of these weaknesses is necessary to guarantee the real enforceability of behavioural remedies and the effectiveness of EU merger control.
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