As a consequence of the judgment of the Court of Justice and especially the Opinion of the Advocate General in CDC Hydrogen Peroxide, it has been interpreted that arbitration agreements on disputes concerning damages caused by the participation of one of the contracting parties in a cartel may be contrary to the principle of effectiveness of EU law, unless the arbitral bodies to which the dispute has been submitted are bound to apply the provisions of EU competition law as rules of public policy. Moreover, the non-contractual nature of such damages would result in disputes over such damages not being covered by the standard arbitration clauses proposed by the main international arbitral institutions, thus preventing arbitration from becoming a viable means of resolving them. Indeed, the principle of effectiveness limits the procedural autonomy of Member States in relation to the remedies for exercising the right to claim compensation for such damages. However, it does not affect the waiverable nature of that right, so that the waiver of the right to bring proceedings before a court and the submission of the dispute to arbitration are not contrary to European Union law. In the absence of harmonisation of the rules on commercial arbitration, any question relating to the existence, validity or scope of the arbitration agreement is governed by the law of each Member State. Accordingly, a standard arbitration clause may also cover disputes relating to non-contractual liability incurred by one of the contracting parties as a result of its participation in an unlawful cartel if that was the will of both parties at the time of the conclusion of the contract.
Iurgium [previously Spain Arbitration Review]