3.

The crucial question is therefore whether one may go considerably further than the cases just described in applying Article 177 and regard in addition arbitration courts constituted under private law of the kind described at the beginning of this opinion as courts or tribunals within the meaning of that provision. The point was debated thoroughly from all aspects in the course of the proceedings and is also the subject of much controversy among writers: the defendants in the main proceedings and the Commission favoured an affirmative answer whilst the governments of the United Kingdom, the Italian Republic and the Kingdom of Denmark expressed their doubts, not all with the same degree of intensity. It is clear from the debate that it is by no means easy to resolve the isue and that it has farreaching significance for the development of Community law, the work of the Court of Justice and arbitration under private law. (a) Clearly, the wording of Article 177 of the EEC Treaty must be taken as the starting point of an examination of the problem. The government of the United Kingdom relies upon that in its views. It is of the opinion that the phrase “court or tribunal of a Member State” and the corresponding expressions in the other language versions as well as the use of the concept of “judgment” and the corresponding terms in the other language versions support the view that the provision covers only official organs of the States, which have been endowed with a jurisdiction of their own emanating from the State but not arbitration tribunals which deliver not judgments but arbitration awards, whose authority derives from agreement between the parties and whose decisions acquire the stamp of public authority only through the intervention of national courts. It cannot be denied that that argument, especially the reference to the concept of “judgment”, carries a certain conviction and is not wholly without justification. However, as the Commission's representative pointed out it must not be overlooked that the question of arbitration was probably not considered when the Treaty was drafted and therefore it cannot be simply assumed that the terms used were chosen with the specific intention of excluding arbitration courts as such from the scope of Article 177. I should also remind the Court tha:, as I pointed out in my opinion in C 246/80, a perfectly plausible view is t...i the authors of the Treaty intended the formulae used principally to preclude applications to the Court of Justice from, on the one hand, courts of nonmember countries or international courts and, on the other hand, the parties to the dispute, as well as from the Member States and non-judicial authorities within them. I am therefore inclined to take the view that reliance on the wording of Article 177 alone does not provide adequate support for the solution of the problem before us which was proposed by the United Kingdom Government. (b) The next question is, what effect on the issue has the purpose of Article 177 considered in the light of Article 164 of the EEC Treaty, according to which one of the essential tasks of the Court of Justice is to ensure the correct and uniform application of Community law as far as it is relevant in national proceedings. For that reason, it has been submitted, the emphasis in interpreting Article 177 should be placed not so much on the status of the adjudicator) body as on its functions. However, that would seem to imply that even private arbitration bodies should be brought within the scope of Article 177 at least in so far as they observe rules of procedure similar to those of national courts and base their decisions, not on equity, but on law, including statute law, and in so far as those decisions have the same effects as the independent decision of a court of law, that is to say, they are legallybinding and enforceable, and in so far as the State courts have only very limited supplementär)' tests to apply. It must even be regarded as unacceptable, it is claimed, for such a vital field of dispensation of justice, which is substituted for that of the national courts and in which Community law has a not insignificant part to play, to fall outside the operation of Article 177 and that it should be accepted that a considerable area of the law in practice might develop, in certain circumstances in divergence from Community law. (aa) No one can deny that that provides a powerful initial argument in favour of answering the question in the affirmative. A number of objections thereto, moreover, may be relatively easily disposed of. (i) That applies to the British Government's view that Article 177 is intended to ensure that the aims of the Treaty will not be overlooked in national legal proceedings. Yet, it argues, it would seem highly unlikely that questions concerning vital aims of the Treaty should arise in private arbitrations; on the contrary, it is safe to assume that in such proceedings the provisions relating to import restrictions, aids, freedom of movement, freedom of establishment and freedom to provide services will be relevant only in exceptional circumstances. That argument overlooks the fact that Article 177 concerns not only the vital aims of the Treaty, but Community law itself. At least some areas of Community law — questions relating to Article 3C and Article 85 perhaps, as the defendant pointed out — may well be of significance in arbitration proceedings. It is also difficult to maintain that such instances are really isolated individual cases which may easily be ignored, assuming that kind of quantitative approach, which may well be modified in the light of future developments, to be acceptable in any case in interpreting the provisions of the Treaty. (ii) The same applies to the fear which was expressed that clarifications of Community law supplied at the request of private arbitration tribunals might prove worthless because they would not be heeded, and to remark that preliminary rulings serve a purpose only in the case of ordinary courts of law whose judgments are published and therefore influence the development of law. which may not be said of private arbitration tribunals, especially if there are not permanent institutions. The only arbitration tribunal we are concerned with here is one whose awards are based on law, including statute law; it must also, therefore, have regard to Community law, which must be considered as part of public law and which has binding effects, so that there can be no doubt that a preliminary ruling on a point of Community law is binding upon it. Although against that it must be conceded that an arbitration tribunal set up for a single case merely makes an award which becomes known solely to the parties, in principle, and probably has no influence on the development of the law, one must not overlook the fact that the same may be said of many judgments of national courts of law. Moreover, it was rightly pointed out that once the Court of Justice becomes involved the essential effect as far as Community law is concerned derives from the preliminary ruling and that is, of course, always published. (iii) Furthermore, it is not correa to argue that there is no need to allow arbitration tribunals to have a right of reference to the Court of Justice because steps to obtain clarification of points of Community law which may arise in such cases may always be taken by the ordinary courts of law which are called upon to apply certain tests in connection with the proceedings for leave to issue execution, or to which application may be made in appropriate circumstances to have the arbitration award set aside. As to that, it may rightly be observed that not only has the principle of the efficient use of legal procedure led to the grant of a right of reference even to the lower courts in national judicial systems, but it is significant that (as was convincingly demonstrated) arbitration awards are widely recognized and complied with so that the ordinary courts are not called upon to intervene at all. Moreover, it must be borne in mind that the content of arbitration awards under German law — and apparently under many other legal systems — is subject to review only if it appears to be contrary to public morality or public policy. Arbitration awards are not subject to further review — for instance, to ensure that they comply with the normal mandatory principles of the relevant law, and it may therefore be assumed that only a part, perhaps relatively small, of the Community law relevant to a particular arbitration may be subject to discussion even in related court proceedings. (iv) Similarly, I am not convinced by the reference made by the British Government's representative to the fact that all Member States are bound by the Protocol on arbitration clauses of 29 September 1923 or the Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards which oblige them to recognize agreements containing arbitration clauses and which precludes other courts from exercising jurisdiction in such cases. It must be borne in mind, of course — particularly in the light of the preliminary rulings delivered by this C. urt — that recognizing the existence of a right to make a reference does not mean a transposition of jurisdiction to decide the legal dispute in question, jurisdiction which is retained in every case by the court hearing the main action. That explains, too, why the aforementioned provisions do not appear to have occasioned any difficulties even in regard to the British legal practice whereby up to 1979 the ordinary law courts had wide powers to intervene, at the request of the panics, in arbitration proceedings in order to clarify specific preliminary issues, a practice which, despite restrictive legislation dating from 1979, is still permitted to some extent nowadays. (v) Finally, I am likewise unimpressed by the argument also put forward by the British Government that the application of Article 177 to arbitration proceeding would have adverse effects on the arr> tration tribunals which exist in some large cities in the Communities. The British Government argued thai mf many parties to arbitration procrearne do not agree to a reference io tnr European Court of Justice such an extension might drive arbitration tribunals away from the Community, thus occasioning a loss in invisible exports and a diminution of the influence of the laws of the Member States which are frequently adopted as the lex foń and a corresponding increase in the influence of extra-Community legal systems. I feel that that is surely an overestimation of a risk which may or may not exist (in any case, the Second International Arbitration Congress in Rotterdam in 1966 supported the right of reference), and like the majority of the participants in that Congress I am loath to ascribe any decisive influence to considerations of that nature. (bb) Apan from that there are, however, doubts of much greater weight which give cause for hesitation in extending to private arbitration tribunals the right to make references to the Court of Justice under Article 177. (i) Since the wording is not wholly unambiguous the question to be faced is whether it is really correct to infer an assumption on the pan of the authors of the Treaty that arbitration tribunals must be included in the scope of Anide 177, and an intention to ensure the uniform and correct application of Community law in the sphere of arbitration, too. That such was the case may be doubted, not merely in view of those legal systems which fully exclude any review of arbitration awards, but also from the point of view of those, such as German law, which permit review of arbitration awards only in the form of an examination restricted to the aspects of ordre public and to preclude any offence against public morality. If a failure to apply substantive national law is thus tolerated in arbitration awards — in other words, if the absence of precautions to ensure the uniform correct application of the law was not considered to jeopardize the proper evolution of the law, then in my view there is scarcely any justification for considering that more stringent requirements were necessary with regard to Community law. In any case, it was possible to derive comfon from the thought that, in so far as arbitration awards may be reviewed from the two aspects referred to above, essential principles of Community law, too, may be recognized in this way and clarification of them may be obtained by means of references for a preliminary ruling from the ordinary couns of law in the course of proceedings for leave to issue execution or to have an award set aside. Doubts arise, however, in the case of legal systems under which arbitration awards are subject to full review by the ordinary courts, for when access to the courts is organized in this way it maywell appear simply that there is no compelling need for a right of reference in arbitration proceedings because the aim of such a reference may just as well be attained in proceedings before the ordinary courts, to which any party will readily turn who feels himself to have been prejudiced as a result of an incorrect application of Community law. Such considerations are, I am sure, undeniably sufficient to rebut any line of argument which seeks to rely on the meaning and purpose of Article 177 rather than its wording. (ii) The view — also to be found occasionally in legal writings — that extending the scope of Article 177 to include arbitration bodies whose awards are based on law, including statute law, must in many cases lead to recognition of a duty on the part of such tribunals to make references has similar consequences. That is certainly the case when review of arbitration awards by ordinary courts of law is wholly excluded; but it ought also to be recognized in cases where review is so restricted that a tiny part, at most, of Community law — that embraced in the concept of ordre public — may be taken into account in the court proceedings. I might add that I do not see how that result may be avoided by relying on the argument that the whole structure of Article 177 is designed for national courts of law so that the duty of reference could only apply to them, or with the argument that even legal remedies available within the ordinary judicial system are, as often as not, subject to limited review, and do not immediately give rise to a duty of reference. The fact is that if Article 177 is to apply to arbitration tribunals at all, then it must apply in full; in other words, as far as the duty of reference is concerned, the meaning and purpose õf the provision as defined elsewhere, namely to ensure the uniform and correct application of the law, must not be overlooked. As far as the judicial remedies available within the ordinary jurisdiction of the courts are concerned, however, my interpretation is not that they usually involve only a limited review of points of law; where that is the case, however, I think that the question whether the third paragraph of Article 177 applies is one which cannot be avoided. If that view is taken, it must surely be regarded as quite impossible that that result (that arbitration courts or tribunals mav, and must, make references for preliminary rulings) was really intended. In this connection one must reflect the risk that the Court of Justice would be burdened with a workload the extent of which would be difficult to estimate if it were to be thus diverted from its own work to deal with private disputes, often of very minor significance, involving some aspects of Community law. It must also be admitted, moreover, that the result would be a scarcely tolerable intrusion into the field of arbitration. The essence of arbitration is precisely to enable the parties to a dispute to obtain, without having recourse to the courts, a speedy decision on the dispute in a manner designed to avoid publicity and keep costs relatively low. Those advantages would certainly be largely destroyed by a compulsory reference for a preliminary ruling even though, admittedly, the brevity of proceedings for obtaining a preliminary ruling and the preferential treatment they enjoy mean that only negligible delay would be involved. (iii) The theory that in interpreting Article 177 the emphasis should be placed not so much on whether the decisions are recognized by the State and delivered in proceedings governed by the rule of law — a description which may in fact apply equally, as the representative of the Italian Government pointed out, to many purely administrative decisions —, but rather on whether the institution which is given the right of reference is equipped with the authority of the State, which means that only national courts, or at least tribunals in which the influence of public authority is strongly in evidence, are to be regarded as within the purview of Article 177, may also be justified on the ground that that interpretation provides the best guarantee that the questions which are referred to the Court for a preliminary ruling will be usefull and necessary. In fact, if Article 177 is to serve its true purpose such a safeguard, as it were the interposition of an effective filter, is indispensable. That is a point which must give rise to considerable doubt in the case of many ad hoc arbitration tribunals, although forpermanent arbitration tribunals it may well be less true. Since in many cases arbitration tribunals are not composed of lawyers and the parties frequently have no legally trained representative it cannot altogether be expected that they will produce well-defined questions of Community law which are relevant to the issue. There is also the risk of an abuse of the procedure for obtaining a preliminary ruling: disputes might be fabricated in order to obtain preliminary rulings of purely academic interest, and that cannot effectively be prevented by establishing strict requirements to the effect that the decision making the reference must include convincing evidence that the questions submitted for a preliminary ruling are relevant to a decision in the dispute. (iv) Finally, the representative of the United Kingdom Government also observed that the choice of wording in Article 177 — “court or tribunal of a Member State” — requires that the tribunal in question be “of” a Member State, but that that might give rise to considerable problems in the case of an arbitration tribunal established for an individual case, with international connections. In that case the place where it holds its sittings may be taken into account, which need not, of course — if it is free to choose — always be in the same place; the relevant locality might be established on the basis of the applicable procedural law (chosen by the parties) or the substantive law applicable to the contested agreement and may even be made to depend, apan from the nationality of the parties, on the place where the award is made or on the court which has jurisdiction in the action for leave to issue execution. It is possible that the problems I have outlined may simply be dismissed as trifling on the assumption that such “grey areas” will be clarified in the course of time, which was the view expressed by the Commission's representative during the oral procedure. I myself am inclined to the view that there is a sound basis for arguing that in view of difficulties of that nature it should be assumed that the authors of the Treaty did not intend to include arbitration tribunals when they settled the wording of Article 177. (c) In the light of all those considerations I think one cannot escape the conclusion that ultimately the weight of argument is rather against, than in favour of, the view that the actual reference before us must be considered to be admissible. Naturally, however, and especially as the point at issue is, and may no doubt continue to be, the subject of much controversy, I shall not end my opinion with that conclusion but go on to give, in the alternative, my views as to the substantive issues raised in the reference.