The European Federation for Investment Law and Arbitration Blog has just published a post by Senior Associate Édouard Bruc and Associate Ben Williams entitled “VARbitration: Advocate General Ćapeta Sees the European Court of Justice as the Ultimate Referee.” The post discusses the Opinion of AG Ćapeta, which suggests that awards issued by the Court of Arbitration for Sport should be subject to full review at the national level. It explains why the Opinion disregarded a crucial fact and argues that the suggested legal standard does not align with international arbitration law.

Excerpt: “The position is also at odds with well-settled notions of international comity and finality of the award.  Article V(2)(b) of the New York Convention limits substantive review of arbitral awards to issues that are “contrary to the public policy” of the enforcing country. AG Ćapeta suggests that a full review of CAS awards may nevertheless be consistent with this standard. She posits that “effective judicial protection” can be considered a matter of EU public policy, and that this public policy ground justifies review of any applicable EU rights.  However, this interpretation is so broad that it cannot be reconciled with the meaning and strict scope of the “public policy” standard under Article V(2)(b) of the New York Convention. If comprehensive review becomes a public policy concern of its own, the concept has little function. Besides, in cases where arbitration was demonstrably non-consensual and was duly challenged, the issue is not about the scope of review of the entire award, but instead its jurisdictional legitimacy and the arbitral tribunal’s analysis of that legitimacy. Those are two distinguishable issues. As AG Ćapeta noted, nothing justifies applying an Achmea-like jurisdictional bar, as this is not a bilateral arbitration agreement between Member States.  And unlike national arbitration laws, EU law is clearly not equipped to answer such a jurisdictional issue concerning consent from an arbitration perspective (e.g. importance of the seat, conflict of laws, substantive contractual test, etc.), in contrast to EU competition law or the four freedoms. For this reason, an EU public policy filter is much more appropriate under EU law.  And to answer the Belgian Court’s question, national courts remain free to do so under Eco Swiss, regardless of res judicata.”

Read the full blog post.