THE VIEW FROM EUROPE WHAT'S NEW IN EUROPEAN ARBITRATION?

• Published in: Dispute resolution journal 2018-01, Vol.73 (1), p.131-141
• Main Authors: Wilske, Stephan, Fox, Todd J, Stouten, Thomas
• Format: Magazinearticle
• Language: English
• Subjects: Arbitration; Disputes; Expropriation; Judicial reviews; Jurisdiction; State court decisions; State courts; Treaties; Tribunals & commissions
• ISSN: 1074-8105; 2573-606X

On this basis the court reasoned that arbitral proceedings are not outside the institutional and judicial framework of the EU. [...]the Higher Regional Court of Frankfurt am Main confirmed its decision from 2012 and again rejected Slovakia's so-called intra-EU jurisdictional objection. According to the ECJ, one of the keystones of the judicial system established by the EU Treaties and intended to ensure consistency and uniformity in the interpretation of EU law is the preliminary ruling procedure embodied in Article 267 TFEU. [...]the arbitral tribunal has no power to make a reference to the ECJ for a preliminary ruling, which is problematic since the arbitral tribunal may be required to interpret or apply EU law. In such circumstances, the ECJ concluded that the arbitration clause contained in the BIT is incompatible with certain key principles of EU law and that it has an adverse effect on the autonomy of EU law. [...]the ECJ found that because arbitral tribunals constituted under intra-EU BITs may be called upon to interpret and apply EU law to rule on possible infringements of the BIT, but may not request preliminary rulings from the ECJ, and their awards are subject only to limited judicial review by EU Member State courts, investor-State arbitration under intra-EU BITs threatens the effective application of EU law.