International Arbitration and EU Law
Jose Rafael Mata Dona and Nikos Lavranos, eds.
Edward Elgar Publishing, 2021.
Reviewed by: Joel Richler
In his foreword to this collection of individually written chapters on the inter-connection of international arbitration and EU law, eminent international arbitrator Charles Brower colourfully explains the need for this work by describing EU law as an “invasive species” that has “slithered” into the realm of international arbitration. He then embellishes his description by simply listing the wide range of discrete topics covered in the book’s 20 chapters: agency, anti-suit relief, anti-trust, challenges under the Collective Economic and Trade Agreement, consumer protection, collective redress, damages, data protection, the European Convention on Human Rights, the Energy Charter Treaty, recognition and enforcement of awards, investor-state disputes, investments under intra-EU investment treaties, mediation, matters brought before the Multilateral Investment Court, public procurement and taxation matters. Put simply, one cannot participate in any commercial arbitration involving any EU entity without being fully conversant with the many possible implications of EU law, and this book will provide the arbitration practitioner with much that she or he needs to acquire fundamental and detailed knowledge of its subject-matter.
Space does not permit a complete list of the 33 contributors to the book, but I do note that they represent a mix of highly regarded academics, counsel, judges and arbitrators from throughout the European Community and the United Kingdom.
The work is not only broad, but also extremely comprehensive, with approximately 500 pages of text and footnotes and a 30-page bibliography, usefully divided between chapters, a detailed index and comprehensive lists of cases and legislation.
The book is organized thematically. Part I has three chapters on “The Pre- and the Post-Award Stage in International Commercial Arbitration vis-a-vis EU Law and the European Attitude Toward Anti-Suit Relief.” Chapters in this part deal with the interaction between international commercial arbitration and EU law prior to the issuance of awards. A second chapter deals with the impact of EU law on challenges, recognition and enforcement of awards and a third chapter covers anti-suit relief, EU law and the New York Convention.
Part II has eight chapters on “Selected Areas of Interaction Between EU Law and International Commercial Arbitration.” Without listing all the chapters, it is noteworthy that one chapter deals with the important and often misunderstood (by non-European practitioners) of GDPR1 compliance and the impact that that has on the production of information in commercial arbitrations, wherever seated. As the writer of that chapter rhetorically asks: “How is an arbitrator to get even a single night of sound sleep, reflecting on how the highly developed and regulated field of data privacy applies to a particular arbitration?” For those of us who practice in the area of construction and public procurement, the chapter on Directive 2014/24/EU is particularly interesting, especially with respect to the implications that that Directive could have on the appointment of arbitrators where several disputes involving multiple parties are to be determined in a single arbitration.
Part III has nine chapters on “Intersections Between International Investment Arbitration and EU Law”. Of particular interest to me was the chapter devoted to the procedural issues of annulment, recognition and enforcement, especially in light of the growing tendency of States to refuse voluntary payment of awards issued against them.
The practitioner looking for specific information on discrete topics in each of the chapters is assisted by an extended table of contents for each chapter. Every chapter provides excellent combinations of practical advice, together with deep discussions of the applicable substantive law. As a good example of this, I provide this overview of the chapter on pre-award proceedings, authored by Piotr Wilinski, an Assistant Professor at Erasmus University, and an arbitration practitioner at Houthoff, based in the Netherlands. Mr. Wilinski covers jurisdiction issues, with emphasis on limits to party autonomy that are imposed by EU law and conflicting decisions on the validity of arbitration agreements. He then deals with the merits phase of arbitrations by discussing subject-matter arbitrability and the application of EU law by tribunals.
It is worthy of mention that, as with all books in this series (the Elgar Arbitration Law and Practice), this work is available in electronic format, facilitating its ease of use and its user-friendly search capabilities.
Finally, the publisher of this book states its aim to provide the work as an authoritative statement on the legal and procedural framework of international arbitration in relation to EU law. A casual scan of the book will show that this objective has been achieved. The book will be a very useful addition to the libraries of all arbitration practitioners with cases in or relevant to the European Union.
 General Data Protection Regulation
Joel Richler practices as an independent arbitrator, adjudicator and mediator at Arbitration Place and Bay Street Chambers in Toronto, Ontario. Mr. Richler was, for almost 40 years, a senior dispute resolution practitioner at Blake, Cassels & Graydon LLP. www.joelrichler.com