Kan nya EU-domar läggas till grund för förnyad prövning av slutgiltiga internationella skiljedomar?

Abstract

The present article addresses the consequences of the CJEU’s requirement that national courts not only follow the lead indicated in a preliminary ruling, but that they apply its principles retroactively. This default position is liable to encounter major obstacles in national procedural law, which have sometimes led the Court of Justice to modify its dictum so as to respect national principles of res judicata, in the sphere of Member State procedural autonomy. The article approaches this issue from the perspective of Swedish and international arbitration law. The impetus of the article was recent case-law of the CJEU which, by casting doubt on the validity of arbitration clauses in intra-EU BITs, appeared capable of overturning a vast number of final international arbitration awards. The article queries whether Swedish arbitration law, on the one hand, allows parties to invoke changes ex tunc in international jurisprudence in order to correct prior errors made by arbitration tribunals or by the judiciary. On the other hand, it considers whether the effectiveness of EU law requires national courts to provide extraordinary remedies so as to comply with the case-law of the CJEU. It is concluded that while hard requirements to this effect cannot be derived from the case-law, Swedish arbitration law is to a certain point capable of accommodating the CJEU’s doctrine of retroactivity. It is argued that a line must nevertheless be drawn when the principle of res judicata is uprooted for the benefit of public litigants at the expense of individual parties, rather than in order to protect individuals against public violations of their fundamental rights.