Mandatory Consumer Law, Ex Officio Application of European Union Law and Res Judicata: From Océano to Asturcom

18 Pages Posted: 18 Nov 2010

See all articles by Martin Ebers

Martin Ebers

Humboldt University of Berlin - Faculty of Law; University of Tartu, School of Law

Date Written: November 15, 2010

Abstract

In Océano, followed by the rulings in Cofidis, Mostaza Claro, Rampion and Pannon, the ECJ held that national courts must abandon their judicially passive role to ensure ex officio that consumer rights are sufficiently protected. In the Asturcom case, the Court had to decide whether a national court hearing an action for enforcement of a final arbitration award has to determine of its own motion the possible unfairness of an arbitration clause, if the arbitration award became final and acquired the force of res judicata. This article analyses ECJ consumer case law leading up to the decision in Asturcom. It also examines the implications of this ruling on national procedural law in greater detail. It is argued that the ECJ, in developing an autonomous concept of public policy, introduced EU standards with far reaching impacts on the principle of res judicata in consumer arbitration. Given this, the manifold implications of the Asturcom case on consumer arbitration law in particular and civil procedures in general are examined.

Keywords: Consumer Law, European Private Law, Civil Procedures, Arbitration

Suggested Citation

Ebers, Martin, Mandatory Consumer Law, Ex Officio Application of European Union Law and Res Judicata: From Océano to Asturcom (November 15, 2010). Available at SSRN: https://ssrn.com/abstract=1709347 or http://dx.doi.org/10.2139/ssrn.1709347

Martin Ebers (Contact Author)

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

University of Tartu, School of Law ( email )

Tartu
Estonia

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