Originally from The Impact of EU Law on Commercial Arbitration

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INTRODUCTION

The relationship between arbitration and EU law can be analysed from various angles. The purpose of this paper is to identify to what extent the Court of Justice of the European Union (“the Court of Justice” or “the Court”) is competent to deal with preliminary references coming from different sorts of arbitration tribunals. Before addressing this particular problem, I deem it necessary to recall some basic principles and the place of arbitration within the EU legal order.

I.  ARBITRATION WITHIN THE SYSTEM OF EU LAW

Arbitration is not a concept that is alien to the law of the EU. One has to mention in the first place the wording of Article 272 of the Treaty on the Functioning of the European Union (“TFEU”) which states that the Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law. The European institutions have made and continue to make recourse to that possibility. The Court of Justice and the EU General Court  have rendered many decisions on the basis of such an arbitration clause. The recourse to arbitration was also provided for in other instruments of the law of the Union, such as regulations establishing programmes PHARE  or TACIS.  The aim of these programmes was to provide financial support for the countries of Central and Eastern Europe which, at that time, were not members of the EU. Contracts concluded within the framework of these programmes contained clauses providing for the competence of the ICC arbitration in the case of a dispute between a service provider and a recipient country.  A similar mechanism can be found in the implementation of some international conventions concluded by the European Community with certain African countries – the conventions Lomé III and Lomé IV  (which have been replaced by the Cotonou convention).