The book concludes with situating the EAEU legal order within the indicia developed in Chapter 1 demonstrating whether and how these are fulfilled for the autonomous legal order to emerge. There are certainly some manifestations thereof, such as the Court’s move to recognize and incorporate the discourse of major doctrines relevant for legal order autonomy. Nevertheless, it has troubles demonstrating some of the indicia, and the power struggle between the Member States and EAEU institutions has resulted in limitations, particularly running the risk of misapplication of Union law and fragmentation of the legal system, as well as endangering the ability of the legal order for self-maintenance. While this leads to ‘fragile autonomy’, there are embedded premises, which can help in overcoming this, if such a desire prevails. The book spells out some concrete ways to do so.

Chapter 6 is devoted to the functioning of the EAEU Court and its ability to fulfil its aim of ensuring uniform application of EAEU law, and eventual aptitude to ensure the formation and continued existence of the autonomous legal order. The Court relies significantly on EU case-law as its main source of inspiration, making references to it and at times adopting similar doctrines. Some basic judicial remedies available in the EAEU are similar to those in the EU, however the focus is on the remedies that are absent while of paramount importance for legal order autonomy. Thus, the chapter reviews the special case of preliminary ruling as a mechanism ensuring uniform application and interpretation of law throughout the organization, and in the absence thereof, looks for a substitute. It reviews some other limitations that the Court has suffered and explores the reasons for that, including the analysis of some highly controversial decisions of the Court. It also addresses the issue of exclusive jurisdiction of the Court. It is argued that these challenges are the hardest to overcome. Nevertheless, it is demonstrated that there are ways out and that certain treaty-imposed limitations are virtually impossible to uphold in practice.

Despite its prolonged existence, the relationship between the European Union and international commercial arbitration still raises many unanswered questions, amongst which that of the role and place of European Union law in arbitral proceedings. A specificity of EU law is that despite originating from the EU legal order, it forms an integral part of the legal order of each Member State. Consequently, the interpretation and application of the laws of a Member State may require that arbitrators look beyond the domestic realm when EU rules are at issue and take into account the context of the EU legal order. This contribution analyses four salient issues in this regard: First, it asks whether the place of arbitration matters for the application of EU law both with respect to procedural matters and concerning the merits of disputes. The second and third parts of this contribution address, respectively, the application of non-mandatory norms and mandatory EU rules in the context of arbitration proceedings. Finally, some insights are provided on the state of play with respect to the possibility for arbitration tribunals to ask a preliminary question to the CJEU on a matter of EU law.

The (positive) competence-competence principle is one of the most fundamental principles of international arbitration. It provides the arbitral tribunal with the competence to decide on its own competence. These positive effects relating to the jurisdiction and the competence of the arbitral tribunal are nearly universally recognized, contrary to the consequences following from it for the jurisdiction of the state courts. Despite the positive effect’s broad recognition, its justification raises difficult questions which touch the very basics of arbitration. The entry discusses the historic and conceptual background of the principle as well as some of the controversial questions as to its scope and the form, timing and requirements of an arbitral tribunal’s jurisdictional decision, setting out the approaches adopted in the various jurisdictions.