International Commercial Arbitration Judicial Review Of New Developments In The European Union

This thesis discusses development of the judicial review regime of international commercial arbitration in the Member States under the direct and indirect influence of EU law. Chapter Ⅰ adopts a broad definition of judicial review of international commercial arbitration, which refers not only to the review of procedural and substantive aspects of an arbitral award by a court during recognition, enforcement and revocation procedure after the award is given, specifically, based on the grounds for refusal of recognition and enforcement under the New York Convention, but also judicial intervention before and during arbitral proceedings. This chapter then discusses the intrusion of judicial review process by EU law.Chapter Ⅱ examines the Brussels Regulation and its relation to judicial review of arbitration. The lack of uniform rule on jurisdiction of arbitration has given rise to the utilization of parallel proceedings to stall arbitration, which is due to the dual systems whereby international commercial arbitration is regulated through the New York Convention, and courts’ jurisdiction the Brussels Regulation. The existence of dual systems fails to address the interface between arbitration and litigation, and unilateral means such as anti-suit injunctions adopted by Member States such as the United Kingdom, have been struck down by the ECJ for being incompatible with EU law. In light of these, arbitration agreements face weakening of efficacy under EU law. Attempts to amend the Brussels Regulation were undertaken to improve the interface between arbitration and litigation. The end result is a reinforcement of the arbitration exclusion clause in the recast Brussels Regulation.Chapter Ⅲ examines the impact on judicial review of arbitration brought about by the substantive EU law, such as competition law. Because EU law affects private parties mainly though domestic legislation and judicial actions, Member State courts are charged with implementing EU law faithfully. More specifically, Member State courts must give effect to rules of EU competition law as part of its domestic public policy as a grounds for refusal to recognize or enforce an arbitral award. Some Member State courts have elaborated criteria on judging when violation of competition law amounts to violation of public policy.Finally, Chapter Ⅳ contemplates the lessons that may be derived by China in learning from the amendment of Brussels Regulation, in order for China to arrange for a more harmonious jurisdictional system for the judicial review of arbitration and for the prevention of parallel proceedings. Meanwhile, private parties may take certain actions in the face of uncertainties around anti-suit injunctions. Lastly, it is desirable both from a normative and existential perspective for China to allow claims raising competition law to be settled through arbitration, in order to promote the private enforcement of its competition law. The established practice of giving public policy a strict interpretation should be maintained.