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International Arbitration and EU Law
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International Arbitration and EU Law

9781788973991 Edward Elgar Publishing
Edited by José Rafael Mata Dona, Independent Practitioner, D.E.S. in European and International Law, and member of the Brussels and Caracas Bars and Nikos Lavranos, Guest Professor of International Investment Law, Free University of Brussels, Belgium, Secretary-General of the European Federation for Investment Law and Arbitration (EFILA), founder of NL-Investmentconsulting, Of Counsel at Wöss & Partners
Publication Date: 2021 ISBN: 978 1 78897 399 1 Extent: 616 pp
This book examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. It expertly illustrates the depth and breadth of EU law’s impact on party autonomy and on the margin of appreciation available to arbitral tribunals.

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Critical Acclaim
Contributors
Contents
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This book examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. It expertly illustrates the depth and breadth of EU law’s impact on party autonomy and on the margin of appreciation available to arbitral tribunals.

Coverage includes:

• an analysis of the relevance of EU law on the validity of international agreements to arbitrate
• consideration of the impact of EU law on challenges, recognition and enforcement of international commercial awards, and the relationship between anti-suit relief, EU law and the New York Convention
• a discussion of selected areas of intersection between EU law and international commercial arbitration, including the ECtHR, consumer protection, damages, competition damages, GDPR, commercial agency and others
• an introduction to the complex areas in which the EU regime and international investment arbitration laws intertwine, through a review of the development of the EU’s investment policy
• an examination of the impact of EU law on specific issues in international investment arbitration including the Energy Charter Treaty, procedural issues (both ICSID and non-ICSID), damages, taxation, and the proposed Multilateral Investment Court
• an appraisal of the potential of International Commercial Mediation and its interrelations with EU law.

International Arbitration and EU Law is a specialist guide for arbitrators, lawyers, judges, and expert witnesses. It will also greatly benefit academics and advanced students working, researching or teaching international arbitration law.
Critical Acclaim
‘A treasure trove for those, practitioners and academics alike, having to tackle any issue involving international commercial arbitration as well as investment arbitration that may have a link to Europe.’
– Franco Ferrari, New York University School of Law, US

‘The relationship between EU law and international arbitration is extremely complex, especially for those who have never practiced EU law. This collection is a tremendous contribution to understanding why the two regimes increasingly overlap, and how (or whether) they can be reconciled. It is especially useful to understanding the evolving relationship between investment arbitration and EU law, which will certainly continue to be much discussed in the context of investment law reform and investor-State disputes. Readers who follow these discussions will be very well served by this volume.’
– Meg Kinnear, Secretary General of ICSID

‘International Arbitration and EU Law is a tour de force that stands out among other publications in the sector. It features leading arbitration practitioners and academics as authors and covers, in the broadest possible manner, important topics at the intersection of international arbitration and EU law. A must for everyone working in this field.’
– Maxi Scherer, WilmerHale and Queen Mary University of London, UK

‘The relationships between European law and international arbitration are both multifarious and entangled. José Rafael Mata Dona and Nikos Lavranos have assembled a stellar group of experts who carefully analyze the many interfaces between European law and commercial as well as investment arbitration. A wide array of judicial actors have a say, be they domestic courts, European jurisdictions or arbitral tribunals, as well as those that will emerge in the future, such as the CETA Investment Court System. The present book is a critical resource to understand these relationships in their full complexity.’
– Laurence Boisson de Chazournes, University of Geneva, Switzerland
Contributors
Contributors: N. Bassiri, G.A. Bermann, A. Blumrosen, C. Brower, L. Capiel, S. Castagna, D. Chochitaichvili, O. Cojo, Q. Declève, M. Feria-Tinta, A.-K. Grill, E. Hay, B.R. Hoebeke, D. Ingle, T. Kalliokoski, S.J. Lamb, E. Martin, D. Overduin, R. Price, F. Rosenfeld, A. San Román Rivera, J.M. Sánchez Pueyo, S.I. Strong, J. Sullivan, I. Van Damme, M.-C. Van den Bossche, O. van der Haegen, P. Wiliński, B. Williams, H. Wöss, P. Živković









Contents
Contents:

Foreword by Charles N. Brower xix
Preface xxi

PART I THE PRE- AND THE POST-AWARD STAGE IN INTERNATIONAL
COMMERCIAL ARBITRATION VIS-À-VIS EU LAW AND THE EUROPEAN
ATTITUDE TOWARD ANTI-SUIT RELIEF

1. Interaction between international commercial arbitration and EU law before the
award is rendered 2
Piotr Wiliński
2. The impact of EU law on challenges, recognition and enforcement of international
commercial awards 17
Bo Ra Hoebeke and Juan Manuel Sánchez Pueyo
3. The relationship between anti-suit relief, EU law and the New York Convention 42
Sophie J. Lamb QC, Bryce Williams and Robert Price

PART II SELECTED AREAS OF INTERSECTION BETWEEN EU LAW AND
INTERNATIONAL COMMERCIAL ARBITRATION
4. Arbitration and the European Convention on Human Rights 73
Monica Feria-Tinta
5. The allocation of GDPR compliance in arbitration 92
Alexander Blumrosen
6. ‘Consumer protection’ in international arbitration and EU law 110
Niuscha Bassiri and Emily Hay
7. Damages in international commercial arbitration 132
Herfried Wöss and Adriana San Román Rivera
8. Arbitration in antitrust damages cases in the European Union 160
Patricia Živkovic´ and Toni Kalliokoski
9. Collective redress arbitration in the European Union 176
S.I. Strong
10. The law governing commercial agency agreements 195
Dodo Chochitaichvili
11. The potential impact of Directive 2014/24/EU on construction arbitration in Europe 229
Luis Capiel and Oliver Cojo

PART III INTERSECTIONS BETWEEN INTERNATIONAL INVESTMENT ARBITRATION
AND EU LAW
12. General aspects of investor-state dispute settlement 242
George A. Bermann
13. Investment arbitration under intra-EU BITs 291
Quentin Declève and Isabelle Van Damme
14. Arbitration under the Energy Charter Treaty: The relevance of EU law 320
Jeffrey Sullivan and David Ingle
15. Investment Chapter in CETA: Groundbreaking or much ado about nothing? 338
Dorieke Overduin
16. Procedural issues: Annulment, recognition and enforcement of investment treaty
awards (ICSID and non-ICSID) 360
Olivier van der Haegen and Maria-Clara Van den Bossche
17. Damages in investment treaty arbitration 391
Herfried Wöss and Adriana San Román Rivera
18. Essential elements of taxation – investment protection and dispute settlement 426
Stefano Castagna
19. The Multilateral Investment Court 449
Friedrich Rosenfeld
20. The impact of EU Law on International Commercial Mediation 469
Anne-Karin Grill and Emanuela Martin
Bibliography 495

Index 541



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