European Public Policy in Commercial Arbitration: Bridge over Troubled Water?

Abstract

This Article aims to analyse the foundations, the concept and the practical implications of European public policy on commercial arbitration. It starts with a detailed analysis of the ECJ's Eco Swiss judgment, which decided on the public policy character of Article 81 EC in the context of arbitration. The reasoning followed by the Court is scrutinised and used as a way to understand better the concept of European public policy and to limit its consequences on arbitration. The author examines the relationship both between European public policy and the New York Convention, and national arbitration practices. A parallel is also drawn with the public policy exception under the regime of Brussels I Regulation. The principal questions addressed concern what European public policy should encompass in an arbitration context, whether there is a duty for arbitrators to apply European public policy of their own motion and the level to which awards, that allegedly misapplied European public policy, should be scrutinised.