AVRUPA BİRLİĞİ ADALET DİVANININ ECO SWISS KARARINDAKİ KAMU DÜZENİ KAVRAMI VE BUNUN AB İÇİ YATIRIM ANTLAŞMASI TAHKIMLERİNDEKİ ETKİSİ

Abstract

One of the interesting definitions of public policy was seen in the quoted passage of the US Supreme Court Judge Cardozo. According to Cardozo, foreign judge shall not discard the foreign law unless it violates some fundamental principle of rights, some common conception of good morals, some deep-rooted tradition of the common weal. In private international law, especially when the forum judge needs to functionalize the notion of public policy, the interest of the private international law may stay behind the interests of substantial law. Public policy has different functions in conflicts of law and in the recognition and enforcement of arbitral awards or court decisions. On the other hand, triggering off the institution of the public policy must be exceptional, and this is the most important distinction between the public policy and the mandatory rules. This distinction could not be pointed out properly in Eco Swiss case where the Court of Justice of European Union (CJEU) has qualified the mandatory rules of competition law in the Treaty within the concept of public policy. In the subsequent court decisions that supervise the intra-EU investment arbitral awards, however, the concept of public policy was interpreted more accurately, and the judges did not prefer to apply the concept of public policy to set aside the arbitral awards.