EU Law in International Arbitration: Referrals to the European Court of Justice

Abstract

While the courts of Member States are enabled or even required to submit preliminary questions concerning the interpretation of EU law to the Court of Justice of the European Union such referrals have traditionally been held inadmissible where made by arbitration panels. The article highlights a gradual softening of the Court of Justice’s position on this matter which would allow arbitral tribunals in investment protection proceedings to address the Court of Justice already at present. It further outlines some fundamental changes in the overall environment of commercial arbitration which should lead to a reversal of the Court’s position also in this field.