Public Policy Defense and the Arbitrability of Competition Disputes Under the Philippine Arbitration Regime

James Gregory Alcaraz Villasis

Abstract


The arbitrability of anti-competition disputes in the Philippines remains to be tested. It is since the Philippine Competition Act is relatively at its infancy, and cases are yet to be brought before the courts. This area entails much complexity considering that competition disputes are by nature imbued with public policy concerns, a mandatory exception for arbitration. This paper aims to examine the arbitrability of competition disputes under the Philippine domestic arbitration regime. After conducting an examination of cases and literature both in the Philippines and abroad, the paper argues that the Philippines may consider the US and French positions as to the arbitrability of competition disputes despite the presence of various public policy concerns. The public policy issues should only be taken into consideration when an arbitral award is brought before judicial bodies for recognition and enforcement and should not bar domestic arbitral bodies from taking cognizance of these disputes. It is to accommodate the state policy regarding alternative means of settling disputes such as arbitration in rendering speedy administration of justice. Whenever an award is granted, the same will be subject to court's intervention for recognition with due respect to the public policy concerns. In so doing, arbitration is being promoted without sacrificing the competition law policy of the Philippines.


Keywords


public policy defense; arbitrability; Philippine domestic arbitration; Philippine competition law; competition disputes.

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References


ABS-CBNnews.com, ‘PNoy Signs PH Competition Act’, 2015 [accessed 21 February 2019]

American Safety Equipment Corporation v. J.P. Maguire & Co., 391 F.2d 821 (1968)

Department of Environment and Natural Resources v. United Planners Consultants, Inc., G.R. No. 212081 (2015); Department of Foreign Affairs v. BCA Corporation International & Ad Hoc Arbitral Tribunal, G.R. No. 210858 (2016)

Department of Justice, Department of Justice Circular Number 098 on the Implementing Rules and Regulations of the Alternative Dispute Resolution Act of 2004

Driessen, Miriam, and Reilly, ‘Private Damages in EU Competition Law and Arbitration: A Changing Landscape’, Arbitration International, 31.4 (2015), 576

Emeterio Cui v. Arellano University, G.R. No. L-15127 (1961)

ET Plus SA& Ors v. Welter & Ors EWHC 2115 (2005)

Gaillard, Emmanuel, and John Savages (eds), ‘Fouchard Gaillard Goldman on International Commercial Arbitration’, Uniform Law Review, 5 (1999), 632–853

Haoqian Chen, Hailin Bao & Tianyo Zhan, ‘Piercing the Veil of Public Policy in the Recognition and Enforcement of Foreign-Related Awards in China’, Beijing Law Review, 7.1 (2016), 23–32

Kolmogorova, Yekaterina, ‘Arbitrability of Competition Disputes: Positions of England, France and Kazakhstan’, Central European University, 2011

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 723 F.2d 155 (1983), cert. granted, 105 S. Ct. 291 (1984)

Nazzini, Gordon Blanke and Renato, ‘Arbitration and ADR of Global Competition Disputes: Taking Stock’, Global Competition Law Review, 1.3 (2008), 1–15

‘OECD Hearings Arbitration and Competition’, Organisation for Economic Co-Operation and Development, 2010

Republic Act Number 10667 on the Philippine Competition Act

Republic Act Number 876 on The Arbitration Law

Republic Act Number 9285 on Alternative Dispute Resolution Act of 2004, 2004

Republic of the Philippines Supreme Court, Administrative Matter Number 07-11-08-SC on Special Rules of Court on Alternative Dispute Resolution

Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359

Sabillo, Kristine Angeli, ‘Aquino Signs PH Competition Act, Amendment to Cabotage Law’, Inquirer.Net, 2012

UNCITRAL Model Law of International Commercial Arbitration (https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf)

Werlauff, Erik, ‘Private Arbitration of Incidental Public Law Issues’, European Business Law Review, 20.4 (2009), 495–656

Youssef, Karim Y, The Death of Inarbitrability, First Arbitrability: International and Comparative Perspectives, ed. by Loukas Mistelis and Stavros Brekoulakis (Kluwer Law International, 2009)

Zuvin, Serap, and Mehmet Ali Akgun, ‘Turkey: Public Policy Defence and Arbitration in International Commercial Law’, Serapzuvin Law Offices, 2015




DOI: http://dx.doi.org/10.28946/slrev.Vol4.Iss2.294.pp79-90

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