Arbitral tribunals and preliminary references to the EU Court of Justice

Abstract

Two recent preliminary rulings of the Court of Justice of the European Union (‘the Court’) recognizing certain arbitral tribunals as ‘court[s] or tribunal[s] of a Member State’ within the meaning of Article 267 Treaty on the Functioning of the European Union open the way for a closer cooperation between arbitration and the Court in matters of interpretation of EU law. This article presents the facts and the holdings of the Court in Merck Canada and Ascendi and discusses the reasons for which in declaring the preliminary references in these cases admissible the Court distanced itself from its traditional case-law on the matter. It is then argued that arbitral tribunals hearing investment disputes, either ad hoc or under the auspices of arbitral institutions, may qualify as ‘court[s] or tribunal[s] of a Member State’ within the meaning of Article 267 TFEU and thus be empowered to submit references for preliminary rulings to the Court.