I had the pleasure of meeting Professor Bermann in 2015 during my LL.M at Columbia Law School. During that time, I worked with him and other LL.M students on a research project relating to the Gazprom judgment (C-536/13 – EU:C:2015:316), where the Court of Justice of the European Union (CJUE) recognized that an arbitral tribunal could issue an anti-suit injunction against a party that had initiated judicial proceedings in the European Union in breach of an arbitration agreement. That project was particularly enlightening as I could combine my experience and knowledge of both arbitration and EU law.
As a token of appreciation for this experience, this short contribution is aimed at illustrating the concept of “pro-arbitration” by combining EU law with some personal reflections stemming from legal philosophy and legal theory. In particular, I argue that examining whether a legal order (in particular the EU legal order) is “pro” or “anti-arbitration” requires an assessment resembling the one that could be used to assess the validity of legal rules.
I. THEORY OF VALIDITY OF RULES
The work of legal philosophers like Hans Kelsen, H.L.A Hart or Ronald Dworkin has shown that the validity of a given legal rule depends on three key dimensions, namely:
• A rule must be properly enacted by an appropriate and legitimate body (such as a parliament or regulator) and it must comply with fundamental legal requirements and principles of law (such as the principle of non-retroactivity). This is called the “legal” dimension.
• A rule must also be properly enforced by judicial and law enforcement authorities. This is the “social” or “effectiveness” dimension.
• The rule must be seen as morally justified by its recipient and it must comply with the moral values in the society in which it is enacted. This third dimension is the “legitimacy” dimension.