European Union Law in Arbitration Proceedings: Status and Methods

Abstract

Despite its prolonged existence, the relationship between the European Union and international commercial arbitration still raises many unanswered questions, amongst which that of the role and place of European Union law in arbitral proceedings. A specificity of EU law is that despite originating from the EU legal order, it forms an integral part of the legal order of each Member State. Consequently, the interpretation and application of the laws of a Member State may require that arbitrators look beyond the domestic realm when EU rules are at issue and take into account the context of the EU legal order. This contribution analyses four salient issues in this regard: First, it asks whether the place of arbitration matters for the application of EU law both with respect to procedural matters and concerning the merits of disputes. The second and third parts of this contribution address, respectively, the application of non-mandatory norms and mandatory EU rules in the context of arbitration proceedings. Finally, some insights are provided on the state of play with respect to the possibility for arbitration tribunals to ask a preliminary question to the CJEU on a matter of EU law.