Court Control on Arbitral Awards: Public Policy, Uniform Application of EU Law and Arbitrability

Abstract

Arbitration is increasingly criticized in the public debate. Among the criticism being raised is that arbitration does not ensure an accurate application of the law.
The need to ensure an accurate application of European Union (EU) law led the Court of Justice of the European Union (CJEU), in the famous Achmea case, to exclude the arbitrability of investment disputes between EU Member States. Thus, for investment arbitration, the CJEU denied arbitrability of disputes relating to EU law.
Also in commercial arbitration, various national courts have excluded the arbitrability of disputes that require an accurate application of EU law, notably in the field of commercial agency. The CJEU in Achmea seemed, to the contrary, to accept that commercial arbitral tribunals may solve disputes relating to EU law, as long as appropriate court control is possible. The different treatment of commercial and investment arbitrability was justified by the CJEU, quite unconvincingly as will be explained below, with a distinction between the respective sources of the arbitral power.