The Impact of EU Law on International Commercial Arbitration

Transcription

1 The Impact of EU Law on International Commercial Arbitration Franco Ferrari Editor NYU Center for Transnational Litigation, Arbitration and Commercial Law JURIS

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3 Summary Contents CONTENTS... vii ABOUT THE EDITOR... xix ABOUT THE CONTRIBUTORS... xxi PREFACE... xxix Chapter EU Law and Consumer Arbitration Camelia Toader Chapter The Arbitration Interface with the Brussels I Recast: Past, Present and Future Martin Illmer Chapter Arbitration and Anti-suit Injunctions under EU Law Alexander Layton Chapter Referrals of Preliminary Questions by Arbitral Tribunals to the CJEU Maciej Szpunar Chapter The Transformation of the European Court of Justice and Arbitration Referrals Jürgen Basedow Chapter Are EU Overriding Mandatory Provisions an Impediment to Arbitral Justice? Francesca Ragno iii

4 SUMMARY CONTENTS Chapter The Rome I and Rome II Regulations in International Commercial Arbitration Pedro A. De Miguel Asensio Chapter The Rome Regulations in International Arbitration: The Road Not Taken Friedrich Rosenfeld Chapter EU Overriding Mandatory Law and the Applicable Law on the Substance in International Commercial Arbitration Xandra Kramer Chapter EU Overriding Mandatory Provisions and the Law Applicable to the Merits Giuditta Cordero-Moss Chapter When, Why and How Must Arbitrators Apply Overriding Mandatory Provisions? The Problems and a Proposal Luca G. Radicati di Brozolo Chapter Antitrust Damages Claims and Arbitration Agreements Christian Heinze Chapter Claims for Damages and Arbitration: The 2014/104/EU Directive Marta Requejo Isidro Chapter The European Convention on Human Rights and Arbitration: The EU Law Perspective Massimo V. Benedettelli iv

5 SUMMARY CONTENTS Chapter The Use (and Misuse) of European Human Rights Law in Investor-State Dispute Settlement José E. Alvarez Chapter European Union Law as a Jurisdictional and Substantive Defense in Investor-State Arbitration George A. Bermann INDEX v

6 Contents ABOUT THE EDITOR... xix ABOUT THE CONTRIBUTORS... xxi PREFACE... xxix Chapter EU Law and Consumer Arbitration Camelia Toader Introduction... 1 I. Historical Background of the EU Consumers Procedural Law... 4 II. Arbitration Agreements and Unfair Terms in Consumer Matters III. The Development of a Harmonized Alternative Dispute Resolution System Conclusion Chapter The Arbitration Interface with the Brussels I Recast: Past, Present and Future Martin Illmer Introduction I. The Arbitration Interface under the Brussels I Regulation Recast A. Recent History of the Brussels I Regulation s Arbitration Exception B. At the Core of the Reform: Parallel Proceedings Introduction The Setting Remedies by the Seat Courts a) Potentially the most effective remedy: Anti-suit Injunction vii

7 b) Potentially the second best remedy: An action for declaratory relief c) The final resort to compensation: Action for damages for breach of the arbitration agreement Relief in the Arbitration Proceedings a) Anti-suit injunction b) Arbitral award c) The final resort to compensation: Damages for breach of the arbitration agreement C. Résumé D. Guidance for Parties II. Beyond Brussels I: A European Add-on to the New York Convention? Conclusion Chapter Arbitration and Anti-suit Injunctions under EU Law Alexander Layton Introduction I. Background A. Brussels Regime B. New York Convention C. Anti-suit Injunctions II. Jurisdictional Spheres A. Marc Rich B. Van Uden C. Turner v. Grovit D. West Tankers E. Reaction to West Tankers F. Gazprom III. Other Areas A. Competition Law B. Conflict of Laws Rules Conclusion viii

8 Chapter Referrals of Preliminary Questions by Arbitral Tribunals to the CJEU Maciej Szpunar Introduction I. Arbitration within the System of EU Law II. Application of EU Law in Arbitration A. Competition Law B. Investment Law C. Final Remarks III. Exclusion of Arbitration from the Scope of Preliminary Rulings and Its Consequences A. Introductory Remarks B. Nordsee C. Scope of Control over Arbitral Awards European Public Policy Procedural Means to Prevent the Enforcement of Arbitral Awards Violating EU Law D. Cooperation with State Courts IV. Possible Ways of Extending the Concept of Court or Tribunal (under Article 267 TFEU) in Order to Accept Some References Made by Arbitrators A. Introductory Remarks B. Arbitration Constituted by an Agreement between the Parties (Commercial Arbitration) C. Arbitration Instituted on the Basis of an Act of International Law Opinion 1/09 and the Agreement on a Unified Patent Court Investment Treaties to which Only Member States Are Parties Investment Treaties of Member States with Third States Conclusion ix

9 Chapter The Transformation of the European Court of Justice and Arbitration Referrals Jürgen Basedow Introduction I. The Referral Procedure and Arbitral Tribunals II. The Emergence and Role of the Court of Justice III. The Evolution of the Referral Procedure IV. Uniform Application of EU Law V. Consequences for Arbitration Referrals Conclusion Chapter Are EU Overriding Mandatory Provisions an Impediment to Arbitral Justice? Francesca Ragno Introduction I. The Concept of (EU) Overriding Mandatory Rules II. The Classification of Overriding Mandatory Provisions III. The Overriding Mandatory Provisions in the ECJ Case Law IV. The Possible Role of Overriding Mandatory Provisions at the Jurisdictional Stage V. The Need to Preserve the Effet Utile of EU Law VI. The Prognosis on the Likelihood of the Disregard of Overriding Mandatory Rules VII. The Wait and See Approach as the Only Alternative Possible? Conclusion Chapter The Rome I and Rome II Regulations in International Commercial Arbitration Pedro A. De Miguel Asensio Introduction I. Law Applicable to the Merits in Commercial Arbitration in the European Union x

10 A. Legal Framework in the Union and Its Member States B. Arbitration Rules C. Arbitration Practice II. Scope of the Rome I Regulation with regard to Arbitration A. The Regulation as a Binding Instrument? B. State Courts as Direct Addressees of the Regulation C. Scope and Significance III. Rome II Regulation A. Application B. Structure and Mandatory Conflict of Laws Rules IV. Choice-of-Law Agreements: Meaning of the Rome I and II Regulations A. Limits to Party Autonomy B. Source of Guidance C. Non-Contractual Obligations V. Methods to Determine the Law Applicable in the Absence of Choice A. General Considerations B. Contracts C. Non-Contractual Obligations VI. International Mandatory Rules and Mandatory Conflict of Laws Rules A. The Rome Instruments and the Protection of EU Public Policy in Arbitration B. Effect of Overriding Mandatory Provisions C. Bilateral Conflict Rules and Scope of Public Policy Provisions Conclusion Chapter The Rome Regulations in International Arbitration: The Road Not Taken Friedrich Rosenfeld Introduction I. The Development from the Seat Theory towards an Autonomous Choice of Law Framework xi

11 II. The Autonomous Framework in Arbitral Practice A. The Applicable Rules of Law Designated by the Parties B. The Applicable Law Failing Any Designation by the Parties C. Imperative Provisions D. Conclusion II. The Framework for the Determination of the Applicable Law under the Rome Regulations A. The Applicable Law Designated by the Parties B. The Applicable Law Failing Any Designation by the Parties C. Imperative Provisions D. Conclusion III. The Two Roads for the Rome Regulations to Become Relevant in International Arbitration Proceedings A. The Direct Application of the Rome Regulations The Status of the Rome Regulations Scope The Addressees of the Rome Regulations B. The Indirect Application of the Rome Regulations The Rome Regime as an Expression of Generally Accepted Rules of Private International Law Cumulative Method Reference by the Parties Mixed Approaches Conclusion Conclusion Chapter EU Overriding Mandatory Law and the Applicable Law on the Substance in International Commercial Arbitration Xandra Kramer Introduction I. Applicable Law and Overriding Mandatory Rules in Arbitration A. Conflict of Laws and the Applicable Law in Arbitral Proceedings Lost in Space? xii

12 B. Overriding Mandatory Rules in Arbitral Proceedings Lost in Translation? II. EU Conflict of Law Rules and Overriding Mandatory Rules A. The Rome I and II Regulations and Arbitral Proceedings B. Party Autonomy in the Rome I and II Regulations C. Overriding Mandatory Rules in the Rome I and II Regulations III. EU Overriding Mandatory Rules A. What Are EU Overriding Mandatory Rules? B. The Position of Internal Market and Country of Origin Provisions C. Repercussions of Violating EU Overriding Mandatory Rules IV. The Hague Principles on Choice of Law A. Aim, Scope, and Relevance for Arbitration B. Overriding Mandatory Rules and Public Policy D. EU Overriding Mandatory Rules in the Arbitration Setting Conclusion Chapter EU Overriding Mandatory Provisions and the Law Applicable to the Merits Giuditta Cordero-Moss Introduction I. Briefly on Overriding Mandatory Rules II. Briefly on International Commercial Arbitration III. Briefly on Overriding Mandatory Rules and International Arbitration A. Relevance of a Classification? B. Relevant Grounds for Setting Aside an Award or Refusing Enforcement Ordre Public a) Narrow scope b) Intensity of court control c) Fundamental principles Arbitrability xiii

13 C. Applying Overriding Mandatory Rules or Observing the Contract Terms? D. Excess of Power if the Tribunal Overrides the Contract Terms? The Private International Law Route Assuming an Ethical Duty Conclusion Chapter When, Why and How Must Arbitrators Apply Overriding Mandatory Provisions? The Problems and a Proposal Luca G. Radicati di Brozolo Introduction I. Application of Overriding Mandatory Rules: Concept and Scope II. Overriding Mandatory Rules in Judicial Proceedings III. The Starting Point: Arbitrators Cannot Ignore Overriding Mandatory Rules IV. Cases Where the Application of Overriding Mandatory Rules Is Unproblematic V. The Specificity of Overriding Mandatory Rules and the Unsuitability of the Approaches to the Application of the Rules Governing the Merits in Arbitration A. The Principles for the Identification of the Rules Governing the Merits in Arbitration B. The General Criteria for the Application of Overriding Mandatory Rules C. Private International Law VI. The Quest for an Arbitration-Specific Approach to the Application of Overriding Mandatory Rules A. The Arbitrators Conundrum in Relation to Overriding Mandatory Rules B. The Arbitrators Power and Obligation to Apply Overriding Mandatory Rules C. When Should Arbitrators Apply Overriding Mandatory Rules and Which Rules Should They Apply? VII. Adopting Rules on the Application of Mandatory Rules by Arbitrators in Arbitration Rules Conclusion xiv

14 Chapter Antitrust Damages Claims and Arbitration Agreements Christian Heinze Introduction I. Non-arbitrability of Antitrust Claims II. Ex post Control of the Arbitral Award A. The Second Look (US) or Eco Swiss (EU) Doctrine B. Weaknesses of Ex post Control III. Ex ante Control of Arbitration Agreements A. United States: Rise and Decline of the Effective Vindication Doctrine B. European Union: Effective Enforcement of EU Competition Law and an (Arguably) Narrow Interpretation of Abstract Arbitration Agreements Narrow Interpretation of Arbitration Agreements to Exclude Cartel Damages Claims The Opinion of Advocate General Jääskinen in Cartel Damage Claims: Effectiveness of EU Competition Law and Foreseeability as Limitations for Arbitration Agreements The CDC Judgment of the Court of Justice and Most Recent National Decisions IV. Evaluation of the Different Approaches A. Non-arbitrability B. Ex post Control and Scope of Review of the Arbitral Award C. Ex ante Control Substantive Ex ante Control: The Doctrine of Effective Vindication (US) and the Principle of Effectiveness of Competition Law (EU) Formal Ex ante Control: Exclusion of Cartel Damages Claims from Abstract Arbitration Agreements? Conclusion xv

15 Chapter Claims for Damages and Arbitration: The 2014/104/EU Directive Marta Requejo Isidro Introduction I. Private Enforcement of Competition Law in the EU A. Private Enforcement before the Directive B. Objectives of the New Regime? C. Implementation of the Directive (Status Quo) II. Actions for Damages in the Directive A. Scope B. Rules on the Merits Full Compensation (but Only Compensation) Joint and Several Liability C. Rules Pertaining to the Procedure Disclosure of Evidence Limitation Periods Passing-on (Burden of Proof) Presumption of Harm: Quantification Coordination of Enforcement Tools a) Public/private enforcement b) Private/private enforcement D. What Is Missing? What Is Left Out? III. Arbitration and Private Enforcement of EU-Member States Competition Law A. Arbitration and Competition Law: Constellations B. What the Directive Means for Arbitration C. The Impact of the Directive on Arbitration (I): To What Extent Arbitrators Are Bound by Its Rules The Directive (Implementing National Laws) as Applicable Law Ex ante, Ex post Award Controls of Arbitration a) Full effectiveness of arts. 101, 102 TFEU b) The jigsaw consistency D. The Impact of the Directive on Arbitration (II): Whether the Directive Encourages Arbitration Suitability of the Rules xvi

16 2. Access to Further Support; Interfaces between Arbitration and Other Avenues for Enforcing Competition Law Conclusion Chapter The European Convention on Human Rights and Arbitration: The EU Law Perspective Massimo V. Benedettelli Introduction I. Moving beyond the Traditional Wisdom: Human Rights and EU Law Do Have a Bearing on International Commercial Arbitration II. The Relationship between Human Rights and Arbitration III. The Relationship between EU Law and Arbitration IV. The Relationship between the European Convention and EU Law V. The Possible Impact of the ECHR on the Arbitration Law of the EU and Its Member States Conclusion Chapter The Use (and Misuse) of European Human Rights Law in Investor-State Dispute Settlement José E. Alvarez Introduction I. A Selective Survey of ECHR Citations in the ISDS Case Law II. Why Is This Happening? III. But Do ECHR References Matter? A Case Study of Philip Morris v. Uruguay and the Margin of Appreciation IV. Drawing Some Tentative Lessons A. The Nature of the Two Regimes: Applicable Law B. Property versus Possessions versus Investments xvii

17 C. The Line between Compensable Expropriation and Legitimate Regulation D. The Meanings of FET E. Fair Trial/Denial of Access to Court F. Other Issues Conclusion Appendix I: A List of 65 Awards with One or More ECHR References Appendix II: ECHR/ISDS Tables Chapter European Union Law as a Jurisdictional and Substantive Defense in Investor-State Arbitration George A. Bermann Introduction I. EU Law as a Jurisdictional Defense II. EU Law as a Substantive Defense III. The Electrabel Case IV. The Micula Case Conclusion INDEX xviii