Limits on Court Review of International Arbitration Awards Assessed in light of States' Interests and in particular in light of EU Law Requirements

摘要

The problem which this article seeks to address is the increasing concern that states do not have sufficient assurances that arbitration awards will generally take account of their most important policies, expressed in their mandatory norms. The requirements of the EU legal order are a particularly challenging instance of this problem. The EU not only requires that EU Member State courts ensure the compatibility of arbitration awards with EU mandatory norms, but that EU Member State courts be able to refer questions of interpretation of EU law in arbitration awards to the European Court of Justice. This latter requirement would appear to entail that arbitration awards should be set aside if they proceed on an interpretation of EU law contrary to that which the ECJ gives them on an Article 234 EC reference.The principal obstacle facing states in ensuring that awards sufficiently account for pressing state policies is that there is a disjunction between a state's having an interest in ensuring a particular arbitral award's compatibility with its policies, and jurisdiction to do so.The suggested solution to this problem is for states to permit their courts to entertain actions seeking a declaration of whether an arbitration award is in compliance with their important policies, even where the state whose policies are concerned was not the seat of the arbitration. Courts of other states asked to enforce the arbitration award will therefore have an authoritative statement of the award's compatibility or incompatibility with the foreign state's important policies. The existence of such statements may be thought to favour a transnationalising effect in tests for public policy review.