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22 J. Int'l Arb. 239 (2005)
Thales Air Defence BV v. GIE Euromissile: Defining the Limits of Scrutiny of Awards Based on Alleged Violations of European Competition Law

handle is hein.kluwer/jia0022 and id is 251 raw text is: Journal of International Arbitration 22(3): 239-244, 2005. © 2005 luwer Law International. Printed in The Netherlands. Thales Air Defence B V v. GIE Euromissile: Defining the Limits of Scrutiny of Awards Based on Alleged Violations of European Competition Law Denis BENSAUDE* I. INTRODUCTION In its decision of November 18, 2004, in Thal~s Air Defence BV v. GIE Euromissile and others ( Thals Air Defence),1 the Paris Court of Appeal rejected a request for annul- ment of a final award based on an alleged violation of European competition law, where the issue had not been raised before the arbitral tribunal. In so doing, the Paris Court of Appeal further clarified the limits of its review of arbitral awards based on alleged violations of European competition law, in light of Eco Swiss China Time Ltd. v. Benetton International (Eco Swiss).2 Pursuant to Eco Swiss, Article 81 EC3 - the European Community's competition law - is a fundamental provision that is essential for the accomplishment of the tasks entrusted to the Community and forms part of the international public policy of the Community's Member States. Moreover, where its domestic rules of procedure require a national court of a Member State to annul an arbitral award based on a failure to observe national rules of public policy, it must also do so based on violations of the prohibitions against anti-competitive conduct laid down in Article 81(1) EC. Having said this, Eco Swiss also confirmed that in light of the procedural autonomy of Member States,4 an award that has already become res judicata as a result of the expiry * Member of the Paris and New York Bars, former Counsel of the ICC International Court of Arbitration, bensaude@orange.fr. Thales Air Defence B.V. v. GIE Euromissile, EADS France and EADS Deutschland GmbH, CA Paris, November 18, 2004. 2 Eco Swiss China Time Ltd. v. Benetton International, Case No. C-126/97, 1999 ECR 1-3055. For com- mentary see T. Diedrik de Groot, The Impact of the Benetton Decision on International Commercial Arbitration, 20 J. INrr'L AlB. 365 (No. 4, 2003); Robert von Mehren, The Eco Swiss Case and InternationalArbitration, 19 ARB. INT'L 465 (No. 4, 2003);Yves Brulard &Yves Quintin, European Community Law and Arbitration: National Versus Community Public Pol- icy, 18 J. INT'L ARB. 533 (No. 5, 2001); Gergios I. Zekos, Eco Swiss China Time v. Benetton International NV Court's Involvement in Arbitration, 17 J. INT'L ARB. 91 (No. 2, 2000); Christoph Liebscher, European Public Policy After Eco Swiss, 10 AM. REV. INT'L ARB. 81 (No. 1, 1999); Carl Michael von Quitzow, The Benetton Judgment and its Practical Implica- tions on Arbitration, 1 Stockholm Arb. Rep. 33 (2000); Laurence Idot, 1999 REV. ARB. 639; and Alexis Mourre, Les rapports de 'arbitrage et du droit communautaire aprs l'arrt Eco Swiss de la Cour dejustice des Communaut& Europ&nnes, LES CAHIERS DE L'ARBITRAGE 77 (July 2002). 1 TREATY ESTABLISHING THE EuRoPEAN CoMMuNITY, February 7, 1992, CMLR Common McaGet Law Reports (1992) pp. 573-792. Set out in Comet B.V. v. Productschap voor Siergewassen, Case No. 45/76, December 16, 1976, CMLR 533 (1977). Copyright ' 2007 by Kluwer Law International. All rights reserved. No claims asserted to original government works.

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