Author: Maud Piers*
Published: June 2012
1. Research setting. The European Union (“EU”) is traditionally expected to refrain from directly interfering with general national procedural law. It is largely considered the primary duty and prerogative of the member states to set up national legal systems. This is referred to as the principle of procedural autonomy. This principle, however, has not prevented the European Court of Justice (“ECJ”) from developing several protective mechanisms to ensure that the national courts adequately account for EU law.
2. European legislation on arbitration. This EU general approach to procedural law is no different from its approach to arbitration legislation. There is hardly any European legislation directly and comprehensively regulating domestic or international arbitration. There have, however, been some initiatives that aim at regulating the arbitration procedure in particular legal contexts. An important example is the EU’s approach to consumer protection. The European Commission has issued a recommendation explaining how an out-of-court procedure can be conducted fairly when a consumer is involved. In this area of the law, substantive EU regulations might have the indirect result of affecting arbitration proceedings. This can be the case when issues to be settled by arbitration fall within the purview of substantive EU law. Consequently, substantive European law frequently has a larger impact on arbitration than any procedural measures so far proposed by the EU. Section II provides a short overview of a number of EU legislative initiatives that guarantee consumer protection and that affect the member states’ arbitration laws and practices.
3. European case law on consumer arbitration. The European Court of Justice played an important role in shaping consumer arbitration legislation and its implementation in member states. The ECJ did not merely impose limits on the subjective arbitrability of consumer law disputes. It took the application of the consumer protection rules one step further. The ECJ through its case law on consumer law also defined the obligations that fall under the courts’ jurisdiction post arbitration. In two rulings on the application of Directive 93/13, the ECJ …
*The author is a professor of European Private Law at the Faculty of Law, University of Ghent. The author would like to thank Professor Reinhard Zimmerman for his support and valuable comments during her stay as a Konrad Zweigert scholar at the Max Planck Institute for Comparative and International Private Law (Hamburg, Germany), Mr. Angus Johnston for sharing his ideas and insights on this topic, as well as Dr. Paul Cook for his lin