The impact of EU public policy on annulment, recognition and enforcement of arbitral awards in international commercial arbitration

This thesis seeks to ascertain the impact of EU public policy on annulment, recognition and enforcement proceedings of international commercial arbitral awards. It explores how the effectiveness of EU law can be reconciled with the nature of international commercial arbitration while accommodating party autonomy. Though the demands of these two competing legal orders may present a challenge, this thesis demonstrates that mitigating these tensions is not only desirable, but also possible. To this end, it provides a model for the CJEU and national courts to effectively implement a narrowly construed EU public policy exception in post-award proceedings, while encouraging arbitral tribunals to be pro-active in their application of EU public policy rules.
In Chapter 1, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out her methodology and structure of the work. Chapter 2 then discusses why and how EU public policy may have a profound and transformative impact on the content of Member States public policy. It concludes that the ECJ is able to shape the national mechanism of public policy through a broad and controversial interpretation of the twin principles of equivalence and effectiveness.
In the second part of this thesis, the author focuses on the content of EU public policy. It analyses the major ECJ decisions in the fields of competition law and consumer protection, in Chapters 3 and 4 respectively, as case-studies of the scope of EU public policy. These chapters establish that, in the hands of the ECJ, the public policy exception has become a tool to strengthen the effectiveness of EU law in the national legal orders, and confirm the findings in Chapter 2. Chapter 5 explains why the ECJ’s broad notion of EU public policy risks to drastically alter the effectiveness of international commercial arbitration in the EU, and may ultimately undermine the proper functioning of the internal market. As a result, this chapter concludes that it is crucial for the ECJ to shape the content of EU public policy more narrowly and coherently than it currently does, and gives concrete advice on how it could do so.
The third part discusses the far-reaching implications of the broad scope of EU public policy for both national courts and arbitral tribunals. As explained in Chapter 6, the mission of balancing the broad scope of EU public policy with the effectiveness of international commercial arbitration is left to national courts. This chapter develops a model for national courts which favours a broad scope of judicial review in exceptional circumstances. The scope of post-award review under EU law operates commutatively as a constraint on arbitral tribunals. Chapter 7 examines the most desirable course of action for arbitrators when confronted to the application of EU public policy rules. It concludes that they should consider raising EU public policy rules, even ex officio, not only to uphold party autonomy or guarantee the effectiveness of the arbitral award in a specific dispute but also to ensure the sustainability of international commercial arbitration in the EU.

Keywords: annulment
recognition
enforcement
European
arbitration
public policy
arbitral
EU
international arbitration
awards
commercial arbitration
Advisor: Krebs, T
Weatherill, S