Arbitrating Transnational Cartels: Competition Law, Public Policy and the Limits of Private Adjudication

The intersection of international commercial arbitration and competition law presents significant legal and regulatory challenges, particularly in disputes arising from transnational cartels. While arbitration offers an efficient, neutral and confidential mechanism for resolving cross-border commercial disputes, its consensual and private character raises concerns regarding the enforcement of mandatory competition laws designed to protect market integrity and public welfare. This paper critically examines the arbitrability of cartel-related disputes through a comparative analysis of the legal frameworks and judicial approaches adopted in the United States, the European Union and India. It explores the evolving judicial recognition of competition disputes as arbitrable, particularly through the principles established in Mitsubishi Motors and Eco Swiss, while highlighting the uncertainties surrounding arbitrability under India's competition and arbitration regimes. The paper further analyses the challenges arising from overlapping jurisdictions, evidentiary limitations, arbitral confidentiality and divergent interpretations of public policy in the recognition and enforcement of arbitral awards. It argues that although private claims arising from cartel conduct may legitimately be resolved through arbitration, the investigation and punishment of anticompetitive practices must remain within the jurisdiction of competent regulatory authorities. Accordingly, the paper advocates a balanced framework based on the 'second look' doctrine, supported by effective judicial scrutiny, reasoned arbitral awards, institutional cooperation with competition authorities and appropriate procedural safeguards. It concludes that a carefully regulated approach to arbitration can reconcile party autonomy with mandatory competition law obligations, allowing arbitration to complement rather than undermine public enforcement in an increasingly interconnected global economy.