Does EU Law Impact an Arbitrator’s Independence and Impartiality?
pages 75 - 92
ABSTRACT:

The discussion stretches over the full range of arbitration matters from the autonomy of arbitration, the recognition of the arbitral award as mandatory by the parties, to the acknowledgment and enforcement of the arbitral award in one or more Member States. The article raises the question of whether the arbitral tribunal is a competent body worthy of the recognition and attention of the ECJ under article 234 TFEU. The analysis contains personal insights and opinions on the judgments in Nordsee, Eco Swiss, Mostaza Claro and Fallimento Olimpiclub, which are of fundamental significance and are building blocks on the subject. The application of the equality principle between the national criteria for annulment of an arbitral award is discussed due to the incompatibility with the mandatory legal rules of the EU or national law. Simultaneously, great attention is paid to the principles of effectiveness and legal certainty, which should be taken into consideration by arbitrators when reaching a decision. The question whether arbitral tribunals have a duty to apply EU law when the dispute is between equal parties and none of them makes reference to these legal norms is also carefully examined. The main findings lead to the conclusion that the duty imposed by the ECJ to apply provisions of EU Law and to prevent arbitration from being used to circumvent the application of public policy rules does not affect the independence and impartiality of the arbitrators. It is only necessary to recognize the EU law mandatory rules, which are the basis of the public policy, as obligatory and supranational.

keywords
Annulment procedure
Applicable law
Arbitration
Arbitration award
Arbitrator
Consumer
Enforceability
Enforcement
EU law
Impartiality
Implementation
Independence
Interpretation
Mandatory rules
National courts
National law
Non-recognition
Ordre public
Preliminary ruling
Principle of efficiency
Principle of equivalence
Principle of legal certainty
Arbitration proceedings
Public policy rules
Res judicata principle
Revocation
Submission agreement
about the authors

Ivaylo Dermendjiev is a lawyer with over 20 years of experience, founder of and senior partner in the law firm Simeonov and Dermendjiev Private Consult Ltd. He is extremely specialized in arbitration and litigation, corporate and trade law, and administrative law and process. Ivaylo Dermendjiev is an arbitrator in CAS and LCIA, as well as in the Arbitration court of Bulgarian Chamber of Commerce and Industry. He has a Ph.D. in law.

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