The Effectiveness of EU Law and Private Arbitration
Common Market Law Review, Volume 57, Issue 4 (2020) pp. 1069 – 1106
31 Pages Posted: 21 Oct 2020 Last revised: 12 Dec 2020
Date Written: August 1, 2020
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
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