It is no exaggeration to
describe the relationship between the European Union and international
arbitration as the most dramatic confrontation between two international legal
regimes seen in a great many years. International law scholars commonly lament
the ‘fragmentation’ of international law, i.e. the co-existence of multiple international legal regimes
whose competences overlap and whose policies may differ, resulting in a degree
of regulatory disorder. However, seldom do these regimes actually ‘collide’. By
contrast, the two international regimes in which we are interested this evening
– international arbitration and the European Union – may be described, without
hyperbole, as on a collision course. Arguably, the collision has already
occurred. The emergence of hostilities on this scale in recent years came about
as something of a surprise to me. At Columbia and elsewhere, I have taught EU
law and international arbitration law concurrently – in different courses, of
course – for more decades than I care to count. Over that period, I have
written and spoken about the EU and international arbitration as separate and
distinct enterprises. Rarely did teaching, writing or speaking of one
necessitate, or even prompt, discussion of the other.