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Johannes Hendrik Fahner
Journal of International Arbitration
Volume 42, Issue 1 (2025) pp. 39 – 58
httpss://doi.org/10.54648/joia2025004
Abstract
The European Court of Human Rights has repeatedly held that the refusal of a Member State court to recognize and enforce an arbitral award may violate the award-holder’s property rights under Article 1 of Protocol 1 to the European Convention on Human Rights. This contribution discusses the Court's growing case-law on unenforced awards. It argues that the framework developed by the Court in this context should be better aligned with the international standards governing the recognition and enforcement of arbitral awards, and that the Court’s review should focus on whether a Member State court’s decision to annul an award or refuse its enforcement complied with such standards. Under Article 1 of Protocol 1, the Court might make this assessment without the deference that it normally extends to domestic courts when evaluating their interpretation and application of domestic or international law.
Keywords
enforcement, recognition, annulment, European Court of Human Rights, European Convention on Human Rights, New York Convention, ICSID Convention, right to property, fairtrial, Article 1 of Protocol 1
Extract
The EU has concluded many international agreements with third states. Since the EU is not a state, it cannot act as a party before the International Court of Justice (ICJ), either as an applicant or as a defendant, which means that the enforcement of these agreements must be regulated through Dispute Settlement provisions in the agreements themselves (though, depending on the subject of the dispute, a procedure within the framework of the WTO is also possible). However, the Court of Justice might have opened the door for a new enforcement possibility in its Venezuela v. Council judgment, where it ruled that Venezuela – a third state – could have legal standing before the Court on the basis of the fourth paragraph of Article 263 TFEU. This article will analyse whether third states could have access to the Court, in order to seek annulment of an EU legal act that potentially violates a provision of an international agreement that the third state had previously concluded with the EU. It will do so by looking at the ratio decidendi of the Court in Venezuela v. Council, and by analysing the conditions of direct and individual concern, the potential exclusionary effects of Dispute Settlement provisions in international agreements, and the need for direct effect of these agreements. For a variety of reasons, the article will mostly focus on Free Trade Agreements (FTAs).