The Effectiveness of EU Law and Private Arbitration

Common Market Law Review, Volume 57, Issue 4 (2020) pp. 1069 – 1106

King's College London Law School Research Paper No. 2020-49

31 Pages Posted: 21 Oct 2020 Last revised: 12 Dec 2020

Date Written: August 1, 2020

Abstract

This paper examines the impact that the principle of effectiveness of EU law has on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy and the possibility to scrutinise errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.

Keywords: Arbitration, EU law, New York Convention, public policy, Achmea

Suggested Citation

Penades, Manuel, The Effectiveness of EU Law and Private Arbitration (August 1, 2020). Common Market Law Review, Volume 57, Issue 4 (2020) pp. 1069 – 1106, King's College London Law School Research Paper No. 2020-49, Available at SSRN: https://ssrn.com/abstract=3685714 or http://dx.doi.org/10.2139/ssrn.3685714

Manuel Penades (Contact Author)

King's College London ( email )

Strand, Somerset Hous
The Dickson Poon School of Law King's College Lond
London, WC2R 2LS
United Kingdom

HOME PAGE: http://kclpure.kcl.ac.uk/portal/manuel.penades_fons.html

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