Supranational Sources in Arbitration Proceedings: Conditions of Admissibility, Procedural Safeguards, and Enforceability of Awards

The article examines the admissibility of relying on supranational sources in international commercial arbitration where the parties have not expressly designated such sources as the applicable regulatory framework. It addresses doctrinal and normative foundations for an expanded understanding of the applicable regulation through the concept of “rules of law”, and delineates the limits of arbitral discretion when construing broadly formulated clauses referring to general principles of law and comparable notions. Particular attention is paid to procedural safeguards ensuring equality of arms and the parties’ right to be heard on the applicable regulation, as well as to the impact of such safeguards on the resilience of an arbitral award at the stages of setting aside, recognition, and enforcement. The article proposes general guidelines for reconciling party autonomy with public-law constraints reflected in arbitrability and public policy, and for mitigating procedural risks associated with the use of supranational regulators.