Revue - Les Cahiers de l'Arbitrage N°1-2023 - 90

ARTICLES - DEBATES
to defeat enforcement of the award. The Court in Asturcom Telecomunicaciones
SL v. Cristina Rodríguez Nogueira, 146
interest not only in EU consumer protection law, but also in the principle of the
finality of arbitral awards. It held that:
Community law does not require a national court to disapply domestic rules
of procedure conferring finality on a decision, even if to do so would make it
possible to remedy an infringement of a provision of Community law, regardless
of its nature, on the part of the decision at issue. 147
Since neither in Eco Swiss nor in Mostaza Claro had the tribunal been presented
with the public policy defense, the CJEU had no occasion to address the question of
the role of an annulment court in a situation in which a tribunal does address the
competition or consumer protection law question, as the case may be, but decides it
wrongly. In point of fact, parties in arbitration do not very often fail to raise plausible
competition or consumer protection defenses to breach of contract claims, and
tribunals will of course rule on them if raised. It is accordingly far more common
for parties to complain in an annulment (or, for that matter, also an enforcement)
action that a tribunal erred in its determination of the defense than that it ignored the
defense altogether. The question before a court in a post-award action is typically
whether the claim or defense was correctly decided. In one competition law case, 148
the national court entertaining a set aside action made a preliminary reference to the
CJEU on a question of competition law that the tribunal had addressed and decided.
The CJEU's Advocate-General took the opportunity to consider the standard of review
that the national court should apply to the tribunal's determination. He concluded
emphatically that, just as a tribunal's failure to address the competition law claim or
defense requires annulment of the award, so too does a tribunal's failure to properly
apply the competition law norm at issue. He went further to specify that, by virtue
of competition law's public policy status, the tribunal's ruling on the matter was
necessarily subject to de novo judicial review:
In my opinion, limitations on the scope of the review of international arbitral
awards ... namely the flagrant nature of the infringement of international public
policy and the impossibility of reviewing an international arbitral award on
the ground of such an infringement where the question of public policy was
raised and debated before the arbitral tribunal - are contrary to the principle
of effectiveness of EU law.
...
[T]he responsibility for reviewing compliance with European public policy
rules lies with the courts of the Member States and not with arbitrators, whether
in the context of an action for annulment or proceedings for recognition and
enforcement. 149
146. Case C-40/08, Asturcom Telecomunicaciones SL v. Cristina Rodríguez Nogueira,
ECLI:EU:C:2009:615 (Oct. 6, 2009).
147. Id. ¶ 37.
148. Case C-567/14, Genentech Inc. v. Hoechst GmbH and Sanofi-Aventis Deutschland GmbH,
ECLI:EU:C:2016:526 (July 7, 2016).
149. Case C-567/14, Genentech Inc. v. Hoechst GmbH and Sanofi-Aventis Deutschland GmbH,
Opinion of the Advocate General Wathelet (Mar. 17, 2016), ¶¶ 58, 61.
88
The Paris Journal of International Arbitration 2023‑1
considered that the EU has a public policy
Revue - Les Cahiers de l'Arbitrage N°1-2023

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