Originally from The Impact of EU Law on Commercial Arbitration

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INTRODUCTION

In 2014, the Court of Justice of the European Union (CJEU) adjudicated 719 cases; 476 of them had been initiated by referrals made by the national courts of Member States for preliminary rulings.  This is a type of procedure that is laid down in art. 267 TFEU  and is unique; the Court of Justice gives an abstract answer to a question of EU law that is submitted by a national court, but leaves the final decision of the case to that court. While the referral procedure was insignificant in earlier years,  it has become by far the most important procedure, followed by appeals lodged against decisions of the General Court (157) and by direct actions, in particular, ones that are directed against Member States for failure to comply with EU law (76). 

I.  THE REFERRAL PROCEDURE AND ARBITRAL TRIBUNALS

The referral procedure is the only one available to arbitrators seeking an authoritative interpretation of EU law provisions that are relevant to the case pending before the arbitral tribunal. The need for such opinions has repeatedly been voiced by arbitration tribunals. However, the Court of Justice pointed out at an early stage that only a “court or tribunal of a Member State” is entitled to submit preliminary questions to the Court of Justice. While the Court specified a number of constitutive elements of a “court or tribunal of a Member State,” it concluded that an arbitral tribunal does not have this capacity.   Over time the Court has somewhat relaxed these requirements and has recognized certain semi-arbitral bodies as being entitled to make referrals; the basic rule appears to be unchanged, however, as far as commercial arbitration is concerned.