再论经营者集中附行为性条件争议仲裁的适用

The Review of Applicability of Arbitration for Disputes in Behavior Remedies of Merger Control

作为经营者集中附加限制性条件之一种,行为性条件需要持续的监督,以实现减少排除、限制竞争影响之目的。行为性条件执行争议仲裁被认为可以给利益第三方提供快速、有效的私法救济,使其能够自行监督行为性条件的执行,在保留反垄断执法机构监督权的同时减少了监督附条件执行的成本,为欧美等反垄断执法机构广泛采纳。但是,由于提交仲裁的实践很少,这些优势更多停留在理论层面,其实效有待进一步检验。行为性条件执行争议仲裁在实施过程中对传统商业仲裁理念和实践提出了诸多挑战,较难实现竞争政策保障与传统仲裁理念之间的平衡。现阶段,我国经营者集中救济制度和实践应当审慎借鉴行为性条件执行争议仲裁机制。

The behavior remedies, as one kind of merger control remedies, need a continual supervision so as to reduce the anti-competition effects. The arbitration for implement disputes in behavior remedies, which is widely adopted by EU and US antimonopoly authorities, is considered to be able to offer the third party with civil law remedies in a fast-effective way, making him supervise the behavior remedies on his own, relieving the pressure of supervision faced by antimonopoly authorities while preserving their investigation power. However, due to the deficiency of arbitration practices, the above advantages are still in the theoretic level, whose actual effect is to be reviewed yet. The arbitration for implement disputes in behavior remedies makes some challenges to the ideas of traditional arbitration and it is hard to balance the conflicts between the competition policy embodiment and the traditional arbitration rules. Therefore, the arbitration for implement disputes in behavior remedies shall be used for reference very prudently by our system and practice of merger control remedies.