Arbitration and competition law: public policy doctrine, confidentiality and role of arbitrators ordem pública, confidencialidade e atuação dos árbitros

Abstract

The purpose of this article is to understand the compatibility between arbitration and competition law, addressing questions beyond its arbitrability, but also about how arbitrators should perform in the application of public policy rules of competition law, and the possibility of lessening confidentiality. Initially, it will be presented the evolution of the objective arbitrability of competition law. Subsequently, it will be examined the relevance of the concept of public policy for arbitration and how objections of competition law as public policy may be raised, in different contexts and degrees of complexity. Finally, it will be addressed how arbitrators should operate when applying public policy matters of competition law, including whether the arbitrator would have a duty to report illegal acts to the competition authority and the possibility of lessening confidentiality of certain parts of the arbitration proceedings in order to contribute to the formation of an arbitration case law.