Forum Shopping Between Unclos Arbitration and EC Adjudication – And the Winner - Should Be - the ECJ! (Commission of the European Communities versus Ireland, ECJ Judgment of 30th May 2006, C-459/03)

Abstract

Ireland and the United Kingdom (UK) disagreed on the lawfulness of certain measures taken by the UK with regard to a so-called MOX plant, situated in the Northwest of England, on the coast of the Irish Sea. Ireland cited a number of breaches of obligations relating to the protection of the maritime environment of the Irish Sea laid down in the Convention of the Protection of the Marine Environment of the North-East Atlantic and the UN Convention on the Law of the Sea which have at least partly become an integral part of the EC legal order. Art. 292 EC establishes exclusive jurisdiction of the Community dispute settlement mechanisms regarding disputes involving the interpretation and application of EC law. Instead of initiating an action based on Art. 227 EC, Ireland relied in the present case on arbitral tribunals whose constitution is provided for by the two Conventions. The question arose as to whether this constitutes a risk to the autonomy and the exclusive character of the EC jurisdictional system and thus, for the EC legal order.