Chapter 13: Review by national courts of arbitral awards dealing with EU competition law
According to the Eco Swiss judgment of the European Court of Justice, in the review of arbitral awards – which can be carried out in proceedings for the recognition or enforcement of such awards, or in proceedings for setting them aside – EU competition law is part of the domestic public policy that courts of the Member States must take into account. The case law of national courts shows that arbitral awards dealing with EU competition law are often reviewed with reference to public policy and, with some possible exceptions due to the specificities of national law or the attitude of the national courts, international public policy in particular should be the relevant concept. This has implications for the intensity of judicial scrutiny. If review is carried out by reference to domestic public policy, this may interfere with the pro-arbitration attitude that characterizes most jurisdictions. On the other hand, if review is by reference to international public policy only, this may potentially affect the effective application of EU competition law. The fact that the ‘minimalist’ approach – whereby only blatant breaches of EU competition law may entail the annulment of an arbitral award – is the approach that prevails widely amongst national courts, can be seen as reflecting the application of the international public policy concept. Nonetheless, the actual extent of the powers to be exercised by national courts under this approach is far from clear under the current practice.
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