Revue - Les Cahiers de l'Arbitrage N°1-2023 - 88

ARTICLES - DEBATES
vulnerability to contempt sanctions from the court whose injunction it chooses
to disobey. This will not be the first time that the resolution of international law
differences will play out differently across jurisdictions. 139
IV. EU - International arbitration law tensions
in the commercial arbitration arena
The inquiry thus far has understandably dwelled upon investor-State cases,
focusing first on arbitral jurisdiction over intra-EU disputes and then on the
handling of substantive conflicts between EU law and the law of investor-State
arbitration. Both the EU and the investor-State arbitration regimes found there to
be a great deal at stake - for their functioning and indeed their identity - in the
resolution of intra-EU investment disputes.
between EU law
Though investor-State arbitration looms especially large over the borders
and
investor-State
arbitration,
commercial
arbitration
is
experiencing important tensions with EU law as well. Jurisdictional issues abound
in international commercial arbitration, but they have not proven to be especially
contentious in disputes implicating EU law. Whether a commercial dispute
implicates EU law or not, the existence of jurisdiction turns on what, in the U.S.
case law and literature, are commonly known as " gateway " issues: (a) was a
contract, and an arbitration clause within it, formed between the parties?, (b) is
such a contract, and the arbitration clause within it, binding upon or available to
a non-signatory?, (c) is the arbitration agreement valid?, and (d) does the dispute
fall within the scope of the contract's arbitration clause? In these respects, disputes
implicating EU law are not especially distinctive.
The same cannot be said of the role of EU law on matters of substance in
international commercial arbitration. The public policy defense to enforcement
of awards, which is a fixture of international commercial arbitration, has in itself
proven to be fertile territory for tension between the EU and international arbitration
regimes. More specifically, as will be shown, EU public policy stands to present an
especially serious challenge to the finality of international commercial awards. 140
The discussion must begin with the CJEU's judgment in the case of Eco Swiss
China Time Ltd v. Benetton International NV. 141
Benetton, a Dutch company,
concluded a licensing agreement with Eco Swiss and Bulova Watch Company,
Hong Kong and New York companies, respectively, whereby Benetton granted Eco
Swiss the right to manufacture watches and clocks bearing the words " Benetton
by Bulova, " to be sold by Eco Swiss and Bulova. Three years before expiry of the
139. Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An
Analysis of Attitudes of National Courts, 4 Eur. J. Int'l L. 159 (1993).
140. See generally George A. Bermann, Reconciling European Union Law Demands with the
Demands of International Arbitration Reconciling European Union Law Demands with the Demands
of International Arbitration, 34 Fordham Int'l L. J. 1193 (2011); Laurence Idot, Ordre Public,
Concurrences et Arbitrage: état de la rencontre [Public Order, Competition and Arbitration: State of
the Meeting], 2006(3) Revue Concurrences 12 (2006) (Fr.).
141. Case C-126/97, Eco Swiss China Time Ltd v. Benetton International NV, ECLI:EU:C:1999:269
(June 1, 1999) [hereinafter Eco Swiss].
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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