Keywords
Summary

Keywords

PRELIMINARY QUESTIONS - REFERENCE TO THE COURT - NATIONAL COURT OR TRIBUNAL WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY - CONCEPT - ARBITRATION TRIBUNAL - EXCLUSION - CONDITIONS - QUESTIONS OF COMMUNITY LAW RAISED BEFORE THE ARBITRATION TRIBUNAL - EXAMINATION BY THE NATIONAL COURTS - RIGHT OF REFERENCE TO THE COURT BY THE LATTER

( EEC TREATY , ART . 177 )

Summary

AN ARBITRATOR WHO IS CALLED UPON TO DECIDE A DISPUTE BETWEEN THE PARTIES TO A CONTRACT UNDER A CLAUSE INSERTED IN THAT CONTRACT IS NOT TO BE CONSIDERED AS A ' ' COURT OR TRIBUNAL OF A MEMBER STATE ' ' WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY WHERE THE CONTRACTING PARTIES ARE UNDER NO OBLIGATION , IN LAW OR IN FACT , TO REFER THEIR DISPUTES TO ARBITRATION AND WHERE THE PUBLIC AUTHORITIES IN THE MEMBER STATE CONCERNED ARE NOT INVOLVED IN THE DECISION TO OPT FOR ARBITRATION AND ARE NOT CALLED UPON TO INTERVENE AUTOMATICALLY IN THE PROCEEDINGS BEFORE THE ARBITRATOR .

IF IN THE COURSE OF ARBITRATION RESORTED TO BY AGREEMENT BETWEEN THE PARTIES QUESTIONS OF COMMUNITY LAW ARE RAISED WHICH THE ORDINARY COURTS MAY BE CALLED UPON TO EXAMINE EITHER IN THE CONTEXT OF THEIR COLLABORATION WITH ARBITRATION TRIBUNALS OR IN THE COURSE OF A REVIEW OF AN ARBITRATION AWARD , IT IS FOR THOSE COURTS TO ASCERTAIN WHETHER IT IS NECESSARY FOR THEM TO MAKE A REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY IN ORDER TO OBTAIN THE INTERPRETATION OR ASSESSMENT OF THE VALIDITY OF PROVISIONS OF COMMUNITY LAW WHICH THEY MAY NEED TO APPLY IN EXERCISING SUCH FUNCTIONS .