EU Merger Control Commitments and Arbitration: Reti Televisive Italiane v. Sky TV

The article analyses the first public award rendered on the basis of an arbitration agreement contained in merger control commitments to the European Commission. It addresses first the nature and general features of the arbitration of merger control commitments, concluding that it is an ordinary commercial arbitration, whose main peculiarity is that it is without privity, being available to all the beneficiaries of the commitments (the customers and competitors of the merged entity). It is not a form of “regulatory” arbitration, nor an instrument for the “monitoring” of merger control commitments and the Commission has no power to intervene in the procedure or to influence the decision. The article then discusses the RTI v. Sky Italia award's analysis on jurisdiction and on the merits. The Arbitral Tribunal's decision on the jurisdictional objection is particularly interesting because it clearly distinguishes the roles of the European Commission and of the arbitrators. While the former is competent for the public enforcement of the commitments, the function of the arbitrators is to settle the disputes between the merging entity and the beneficiaries of the commitments, which would otherwise fall under the jurisdiction of national courts. The award adopts a broad and constructive approach to the identification of the disputes that can be brought under this type of arbitration agreement. On the merits the award identifies the scope of the arbitrator's power to enforce the commitments, in particular in relation to the Commission's concerns in the decision clearing the merger, deciding that the arbitrators cannot modify the commitments. The article concludes that this first arbitration under merger control commitments confirms the effectiveness of the introduction of arbitration clauses in such commitments.