REVISITING ARBITRABILITY IN COMPETITION LAW: A COMPARATIVE ANALYSIS AND THE INDIAN DILEMMA
Muskan Arora, B.A. LL.B. (Hons.), 8th Semester, Student at National Law Institute University, Bhopal (India).
Aditi Raikwar, B.S.C LL.B (Hons.), 8th Semester, Student at National Law Institute University, Bhopal (India).
Mohit Jain, B.S.C LL.B (Hons.), 8th Semester, Student at National Law Institute University, Bhopal (India).
The question of whether competition law disputes can be resolved through arbitration has long been a subject of debate. Traditionally, such disputes have been considered non-arbitrable, as they involve public interest concerns like ensuring fair market competition, consumer protection, and preventing monopolistic practices. However, in recent years, jurisdictions like the United States, the European Union, and Canada have gradually recognized the limited arbitrability of competition law disputes, provided they pertain to private commercial arrangements rather than broad regulatory concerns. This shift is driven by a pro-arbitration approach aimed at fostering international business confidence and providing parties with a flexible, efficient dispute resolution mechanism. In contrast, India has yet to formally adopt this evolving stance. Competition law disputes are generally perceived as falling under the exclusive jurisdiction of the Competition Commission of India (CCI), with arbitration being viewed as an inadequate forum due to its private and confidential nature. However, with the increasing complexity of commercial arrangements and the growing importance of arbitration in cross-border trade, it is necessary to reevaluate India’s approach. This research examines whether India can allow arbitration in certain competition law matters, particularly those involving rights in personam (private contractual disputes) while safeguarding cases concerning rights in rem (public interest and regulatory matters) within the domain of the CCI. By analyzing legal frameworks in the US and the EU, this study seeks to explore a balanced approach for India. It evaluates the legal challenges, policy considerations, and potential solutions that could allow partial arbitrability of competition law disputes, aligning India with global best practices while upholding its regulatory framework. This research further delves into the key developments under the Competition (Amendment) Act, 2023, all of which have implications for arbitrability. The study proposes that adopting mechanisms like the Second Look Doctrine, where courts retain limited review powers over arbitral awards in competition matters, could provide an optimal solution. Ultimately, this paper argues that India must modernize its stance on arbitrability in competition law to facilitate commercial certainty, attract foreign investments, and strengthen its dispute resolution framework. While competition law’s core regulatory function must remain intact, selective arbitrability of private disputes can serve as a progressive step toward legal efficiency and economic growth.
| 📄 Type | 🔍 Information |
|---|---|
| Research Paper | LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 1, Page 1563–1585. |
| 🔗 Creative Commons | © Copyright |
| This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License . | © Authors, 2026. All rights reserved. |