The Law of Arbitration and EU Law – like Oil and Water?

Abstract

The relationship between EU law and the law of arbitration has often been described as one of mutual indifference. However, from about 2010, the two systems began to interact with one-another through certain decisions of the CJEU. This led some observers to argue that the two systems had become intertwined. In order to establish whether the decisions of the CJEU provide a basis for such a finding, the present article considers the interaction between the two legal systems in three different areas. Firstly, whether in certain situations an arbitral tribunal must take EU law into consideration when deciding a dispute. Secondly, those situations where, one way or another, a Member State has been involved in the arbitration. Thirdly, the question whether arbitral tribunals can make so-called preliminary references to the CJEU under the TFEU. While the examination of the relationship between EU law and the law of arbitration shows that increasingly the two systems interact with each other, it also shows that in relative terms there are only a limited number of instances where EU law plays a role within the field of private arbitration. The article therefore concludes that the law of arbitration and EU law continue to be distinct legal systems.