TY - JOUR

T1 - Arbitration cases and preliminary references to the European Court of Justice—an assessment of ‘the Danish Solution’

AU - Broberg, Morten

AU - Fenger, Niels

PY - 2020/3/11

Y1 - 2020/3/11

N2 - When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

AB - When a case, that is pending before a national court in one of the Member States of the European Union, requires a decision on the interpretation or validity of an EU legal measure, the national court can seek a preliminary ruling on the matter from the European Court of Justice before deciding the main action. In its preliminary ruling, the European Court of Justice establishes authoritatively the interpretation or validity of the relevant EU legislation. When EU law plays a role in commercial arbitration it may be very useful for arbitration tribunals to have access to the preliminary reference procedure. However, according to the Treaty on the Functioning of the European Union, only ‘a court or tribunal of a Member State’ can make a preliminary reference and this notion does not include commercial arbitration tribunals. In order to give arbitration tribunals access to the preliminary reference procedure Denmark has introduced a scheme which allows them to ask the ordinary Danish courts to make preliminary references on behalf of the arbitration tribunal. This article explains the Danish scheme and considers to what extent it provides a useful model for other Member States.

UR - https://academic.oup.com/arbitration/advance-article/doi/10.1093/arbint/aiaa003/5802609?guestAccessKey=420bf32b-052a-4436-880a-d5efd9ccdfec

U2 - 10.1093/arbint/aiaa003

DO - 10.1093/arbint/aiaa003

M3 - Journal article

VL - 36

SP - 147

EP - 155

JO - Arbitration International

JF - Arbitration International

SN - 0957-0411

IS - 1

ER -