Arbitration and Antitrust: Navigating the Contours of Mandatory Law

Brower examines the tension between mandatory arbitration clauses and antitrust law enforcement, exploring whether parties can contract out of antitrust protection through dispute resolution agreements. The article analyzes seminal arbitration and antitrust cases, tracing how courts balance the federal policy favoring arbitration against the competing federal interest in preventing monopolistic conduct and protecting competition. Brower discusses the doctrine that mandatory law is not subject to arbitration waiver, examining how courts determine which legal claims are mandatory and cannot be arbitrated. The author explores specific contexts including patent licensing, franchising, and distribution agreements where antitrust considerations collide with arbitration provisions. Brower argues that arbitration and antitrust represent competing commitments within the legal system, and that courts must carefully navigate this tension to preserve substantive legal protections. The article examines international arbitration frameworks addressing similar conflicts and proposes principles for determining when arbitration agreements must yield to mandatory antitrust enforcement.

Keywords: mandatory arbitration · antitrust law · competition law · arbitration clauses · mandatory law · dispute resolution