The Review of National Competition Authorities’ Acts in Investment Arbitration: Setting Limits to ‘Economic Lawfare’ in the 21st Century

This chapter explores what could be an appropriate standard of review that investment arbitrators could use to evaluate the lawfulness of acts of national competition authorities in the context of “economic lawfare”. The interest in international investment arbitration and competition law adjudicators is justified since both are empowered with effective coercion mechanisms. Also, both fields have developed a highly specialized legal vocabulary to codify economic transactions. Therefore, in the context of current developments especially with the intervention of state-owned enterprises in the markets of other states, it is possible that these two fields could be used (or abused) by the states involved in an international conflict. These dynamics are explored with reference to the arbitration case between Gazprom, the state-owned enterprise of Russia and the Ukrainian competition authority. The chapter argues in general for the need of a three-principles standard of review to examine the acts of national competition authorities in light of the current standards of treatment contained in international investment agreements (IIAs).