Effective judicial protection against arbitral awards in EU law: the Seraing-powers

This article analyses how the Seraing case before the ECJ reshapes the understanding of the European principle of effective judicial protection against arbitral awards. The court held that indirect legal measures guarantee effective judicial protection only under the condition that review courts hold a series of powers: The so-called Seraing -powers. First, review courts must have the power to conduct a comprehensive review of an awards compliance with EU ordre public. Second, where an inconsistency with EU ordre public is found, review courts must have the power to draw all “appropriate legal conclusions” which includes not only refusal of recognition but also corrective measures to neutralise the award’s effects and restore a counterfactual compliant scenario. Third, review courts must be able to grant interim measures to safeguard the full effectiveness of the judgement to be given on the substance of the case. Mapping the Seraing -powers onto German law, the article shows that only first instance courts can exercise the full set of Seraing -powers. It further argues that the ECJ neither required a mandatory recognition procedure, nor confined the necessity of the Seraing -powers to imposed arbitration.