At one time, arbitrating antitrust claims was disfavored by courts. In fact, from the late sixties until the U.S. Supreme Court’s decision in Mitsubishi Motors Corp. v. Soler Chrysler Plymouth Inc. in 1985, the American Safety doctrine stood for the general rule that arbitration was ill-equipped to address complex antitrust claims. The reasoning behind this line of thought was that antitrust violations caused an injury to the public at large and therefore, arbitrations, which focus on individual disputes, failed to adequately address this public harm.
Today, the American Safety doctrine is no longer the prevailing viewpoint and arbitrating antitrust disputes has become a completely acceptable practice. In fact, in the last two years the Supreme Court has issued two opinions clarifying when courts should enforce arbitration clauses in antitrust disputes. Both the increased use of arbitration in antitrust and the ever evolving debate surrounding the appropriate use of antitrust arbitration requires that attorneys and their clients develop a strategy for using arbitration in antitrust disputes. This article provides a short discussion of recent developments involving antirust arbitrations and then suggests a number of factors attorneys should consider when discussing advantages and disadvantages to antitrust arbitration with clients.
