The topic that I will deal with in my paper concerns the impact of EU overriding mandatory provisions on the enforceability of an arbitration agreement by a national court seated in the EU. In some instances, national courts of various EU countries have invalidated arbitration agreements that involved contractual disputes, in which the selected arbitral tribunal was seated in a non-EU Member State and in which the choice of law favored a non-EU Member State, to avoid the possibility that enforcement of the arbitration agreement might lead to the non-application of specific EU overriding mandatory provisions.
The rationale followed by the courts has not always been the same: some decisions have held that a matter interfering with the overriding mandatory provisions of the forum is inarbitrable. Other cases have struck down the arbitration agreements on the basis of the risk that the arbitrators wouldn’t apply the overriding mandatory provisions of the forum or on the basis of the consideration that the protection granted by the law chosen by the parties and to be applied by the arbitrators was not equivalent to the lex fori’s standards.
All of those decisions, however, have two things in common. First, they all prevented the parties from relying on the arbitration upon which they had previously agreed, thus depriving them of their right of access to arbitral justice. Second, they all dealt with the problem of preventing the possible elusion of EU overriding mandatory provisions at a jurisdictional stage.
This case law fundamentally raises two questions. First, what are EU overriding mandatory rules and how do they operate? Second, should overriding mandatory provisions play a role at the stage of the ascertainment of the jurisdiction by the court seized, or more precisely, when a national court is asked to enforce an arbitration agreement?