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EU Law and International Arbitration

Managing Distrust Through Dialogue

By: Konstanze von Papp
Media of EU Law and International Arbitration
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Published: 06-05-2021
Format: Hardback
Edition: 1st
Extent: 208
ISBN: 9781509931170
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £70.00
Online price : £63.00
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Loren Epson

About EU Law and International Arbitration

This timely book addresses the main areas of tension between EU law and international arbitration, looking at both commercial and investment treaty arbitration. It opens pathways for practical solutions based on communication between the different regimes. At the same time, it offers a sound theoretical basis that allows for addressing the core problem as normative conflict between legitimate public interests and the 'privatisation of justice'.

The book is divided into five parts. It introduces key aspects of the overall tension between EU law and international arbitration, before setting out the theoretical framework that understands EU law, international commercial arbitration, and investment treaty arbitration as closed regimes. The author then addresses the core problem of finding the limits to contracting out of the EU legal regime, both on a jurisdictional and a substantive level. This is then linked to the question of trust-building in legal outcomes of the relevant regimes. The book concludes with a short summary and key theses.

Combining a theoretical and normative with a more pragmatic approach to very topical issues, this book offers invaluable insights for academics and practitioners, private and public, commercial and investment treaty lawyers alike.

Table Of Contents

Chapter 1: Introduction
I The EU and international arbitration in the international legal system
A The EU as supranational entity
B International arbitration as part of international law

II Restrictions on international arbitration by the EU's judicial system
A The role of the Court of Justice of the EU
B 'Party autonomy' challenged by EU judicial supremacy

III The Public/Private divide
A Distinguishing treaty-based from commercial arbitration
B Contractual and jurisdictional theories of arbitration

IV Privatisation of justice within the EU?
A EU law as transnational law
B The doctrine of non-arbitrability in international commercial arbitration
C The legitimacy debate in investment treaty arbitration
D Developing an EU arbitral model through dialogue


Chapter 2: The nature of EU law and international arbitration
I Theoretical framework
A The contribution of regime theory
B Core insights from systems theory
C The primacy and autonomy of EU law revisited
D Arbitration agreements as self-validating contracts?

II Arbitrability from a transnational law perspective
A Contracting out of the law: normative considerations
B Limits to arbitrability: contracting out of a legal regime?


Chapter 3: Contracting out of the EU legal regime
I EU law and International Commercial Arbitration
A The Brussels (Recast) Regulation and its arbitration exception: a contractual paradigm?
B The reach of EU public policy: what is left of party autonomy?

II EU law and Investment Treaty Arbitration
A EU autonomy and mutual trust as pillars for EU self-preservation
B The reach of Article 344 TFEU: an overarching EU law paradigm for non-arbitrability?


Chapter 4: Building trust in legal outcomes of EU law and international arbitration
I The challenges
A The problem of legitimacy in a transnational context
B Fundamental risk for the international legal system

II Ensuring critical self-reflection through outward engagement
A Institutionalised dialogue
B Building structure through common concepts


Chapter 5: Conclusion and key theses

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