A European Taxonomy of International Arbitration: Doctrinal and Critical Reflections

The article critically discusses the stance of the European Union (EU) legal order towards international arbitration. By examining the case law of the Court of Justice of the EU (CJEU), the article presents a European taxonomy of international arbitration, consisting of (1) commercial-contractual; (2) investment treaty-based; and (3) sports arbitration. It further analyses the taxonomy’s normative underpinnings, which are constitutional in nature and concern the autonomy of the EU legal order, the mutual trust between EU Member States, and the compliance of arbitral awards with EU public policy. In this light, the article argues that the EU-law position appears contextual and insufficiently doctrinally coherent: this points to the need for the CJEU to engage with the importance and function of international arbitration as a system of dispute settlement. In this sense, and within the existing EU constitutional framework, sanctioning a virtually unrestricted judicial review of awards ought to be avoided in favour of preserving the effectiveness of arbitration in Europe.