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American Review of International Arbitration - ARIA - Vol. 19 No. 2 2009
American Review of International Arbitration - ARIA - (U.S. Price)
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A QUESTION OF FAIRNESS: SHOULD NOERR-PENNINGTON
IMMUNITY EXTEND TO CONDUCT IN INTERNATIONAL
COMMERCIAL ARBITRATION?
Randy D. Gordon∗
INTRODUCTION
As arbitration has supplanted litigation as the primary method of dispute
resolution between parties to international commercial relationships, questions
have inevitably arisen as to when concepts first developed in litigation should
apply to arbitration.1 Answering these questions is not always an easy task
because, on the one hand, the use of arbitration is now a governmentally
encouraged form of dispute resolution but, on the other hand, arbitration’s relative
informality and private contractual nature still render it suspect in some eyes.2
This article is concerned to examine a potent litigation weapon--the Noerr-
Pennington doctrine, which generally insulates litigation conduct from later
claims--and to determine whether and to what extent it should, by analogy,
immunize conduct within an arbitral proceeding from later claims.3 Part One
traces the development of the Noerr-Pennington doctrine in the litigation context.
Part Two considers the arguments, pro and con, for applying the doctrine to
arbitration acts. Part Three concludes with some suggestions for facilitating
application of the doctrine to arbitration.
I. DEVELOPMENT OF THE DOCTRINE
In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., the
United States Supreme Court held that competing railroads had not violated the
antitrust laws by jointly "seeking to influence the passage and enforcement of
laws . . . to destroy . . . truckers as competitors for the long-distance freight
business."4 This was so, according to the Court, because the federal antitrust laws
do "not prohibit two or more persons from associating together in an attempt to
persuade the legislature or the executive to take particular action with respect to a
law that would produce a restraint or a monopoly."5 This conclusion flowed from
the Court’s recognition that antitrust laws must be construed in harmony with an
overarching constitutional right: "The right of petition is one of the freedoms
protected by the Bill of Rights; . . . we cannot, of course, lightly impute to
Congress an intent to invade these freedoms."6 Accordingly, "no violation of the
[antitrust laws] can be predicated upon mere attempts to influence the passage or
enforcement of laws."7 The antitrust laws thus do not apply "where a restraint
upon trade or monopolization is the result of valid governmental action, as
opposed to private action."8
Randy D. Gordon - B.A., M.A., Ph.D., Kansas; J.D., Washburn; LL.M., Columbia; Ph.D., Edinburgh.
Partner with the firm of Gardere Wynne Sewell LLP, adjunct faculty member at Southern
Methodist University, and part of the Member Consultative Group for the American Law
Institute’s Restatement Third, The U.S. Law of International Commercial Arbitration.
The author wishes to thank James McKain, his research assistant and a student at the
University of Kansas, for his considerable contribution to the authorities cited below and
John Thompson, a former associate of the firm, for his preliminary research and analysis
of the issues presented. The views expressed in this article are the author’s alone and do
not necessarily represent those of the firm or its clients.
