PhD ceremony Mr. G. Blanke: The use and utility of international arbitration in European commission merger remedies. The nascence of supranational arbitration?

PhD ceremony: Mr. G. Blanke, 16.15 uur, Academiegebouw, Broerstraat 5, Groningen

Dissertation: The use and utility of international arbitration in European commission merger remedies. The nascence of supranational arbitration?

Promotor(s): prof. J.H. Jans

Faculty: Law

Gordon Blanke’s dissertation examines the private enforcement of behavioural and structural commitments under conditional EU merger clearance decisions adopted by the European Commission in its merger control practice within the powers accorded to it under the EU Merger Regulation over the period 1992 to 2012. The examination is based on a pool of a total of sixty-five merger control decisions each of which incorporates an arbitration commitment providing for fast track dispute resolution of any disputes arising from the implementation of the underlying main commitments on basis of which the European Commission has cleared the merger. The examination shows that the majority of EU merger clearance decisions that benefit from fast track dispute resolution are behavioural – rather than structural - in nature. This is explained by the fact that behavioural commitments commonly take the form of access commitments, which provide access for third-party beneficiaries to essential facilities controlled by the merged entity post merger and which as such require by definition some form of medium- to long-term monitoring. Such monitoring is achieved by the self-enforcement of the merger commitments through the market, i.e. through the third-party beneficiaries themselves, who – in turn – are empowered to enforce their access rights in reliance on the arbitration commitment contained in the original conditional merger clearance decision. The dissertation concludes that the unique features of EU commitment arbitration have their origin in the supranational nature of the European Union, giving rise as such to a form of supranational arbitration, which in turn has been seminal in the emergence of the supranational arbitrator.