Ordre Public Scores the Winner as Mandatory Arbitration Watches from the Bench: The CJEU’s Decision in Case C-600/23 Royal Seraing Football Club

Table of Contents: 1. Introduction. – 2. Factual background. – 3. Analysis. – 3.1. Previous case law. – 3.2. The Court’s decision. –  3.2.1. Res iudicata and probative value – 3.2.2. Mandatory arbitration – 3.2.3. Standard of review – 3.2.4. The self-enforcing nature of CAS arbitration – 3.2.5. Justification of arbitration as a legitimate objective – 3.3. Legal and practical implications – 3.3.1. The role of the NYC – 3.3.2. Practical outcomes – 4. Conclusions.

Abstract: The case discussed here provides an extensive illustration on the interaction between EU law and arbitration as well as the Court of Justice of the European Union’s approach to it. The judgment concerns a CAS arbitration between a Belgian football club and the world football association, FIFA. The Court was asked, in a preliminary reference, whether the principle of effective judicial protection precludes the res iudicata effects of CAS awards. In its judgment, the Court clarified that for an award to have res iudicata status, it must have been effectively scrutinised for possible violations of EU ordre public. The Court also discussed whether CAS arbitration constitutes ‘mandatory arbitration’ and how this concept affects the principle of effective judicial protection. Another key issue was the special system of enforcement carried out by sports associations. The case note examines this reasoning and evaluates the Court’s findings. It moreover sets out to question how the judgment relates to the position of arbitration in the EU system at large, the effects on the implementation of the New York Convention by member states and the practical implications this judgment has for ongoing and future disputes. Based on this critical assessment of the framework set out by this judgment, the case note aims to give suggestions for its implementation by state courts and point out fallacies to be aware of in future arbitration cases.

Keywords: sports arbitration – mandatory arbitration – effective judicial protection – preliminary ruling – res iudicata – ordre public.

1.   Introduction

It has become a sport for legal scholars to explain sports law cases in sports terminology – this author is no exception. However, in its newest judgment, Case C-600/23 of 1 August 2025 (Seraing), Court of Justice of the European Union (the Court) showed that legal disputes are not always as clear cut as football games. While some celebrated the judgment as a victory for the European Union (EU) and its legal order, the reception among those that were fearing a defeat of sports arbitration is mixed. The Court was tasked with a preliminary reference in a case where a Belgian football club had appealed against a decision by the world football association (FIFA), first in arbitration, then before the Belgian courts. In the court proceedings, the issue arose whether the earlier arbitral award precluded it with res iudicata effect. The Court chose a different path than expected and crafted a judgment that gives insight into the relationship of EU law with the most fundamental principles of international arbitration.

The most important international treaty for international arbitration is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC). With 196 states, including all EU member states, it is one of the most signed treaties in history.[1] Its rules are widely respected and implemented all over the world.[2] Under Article III of this treaty, states have an obligation to recognise foreign arbitral awards. Article V NYC provides some exceptions under which states can refuse recognition and enforcement. Most of these exceptions deal with violations of procedural rights, such as the right to be heard or lack of consent to arbitration. Only one of these exceptions gives state courts the right to regard the substance of an arbitral award. According to Article V 2(b) NYC, states can refuse recognition or enforcement when doing so would go against their public policy, or ordre public.[3] To constitute ordre public of a state, a rule must be a fundamental principle of the state’s legal order.[4] Thereby, the discretion of state courts to substantially review foreign arbitral awards under the NYC is very limited. The ordre public standard, just like the NYC, is widely accepted in international arbitration and respected as a principle by states and arbitral tribunals alike.[5]The same standard also applies in proceedings regarding the annulment of an arbitral award.[6]

At the heart of the Court’s decision lies this very standard. It was speculated that the Court’s interpretation of the principle of effective judicial protection derived from Article 19 of the Treaty of the European Union (TEU), Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) and Article 267 of the Treaty for the Functioning of the European Union (TFEU) might make sports arbitration as currently practiced impossible. The Court has not followed the Opinion of Advocate General Tamara Ćapeta (Ćapeta Opinion), who demanded full review of sports arbitration based on controversial concepts such as ‘mandatory’ and ‘self-enforcing’ arbitration. Instead, it formed its argument around the ordre public standard. This way, it has achieved a deeper integration of this principle into EU law while also raising interesting questions regarding the NYC. This case note will illustrate the factual background of the case first (section 2). Afterwards, the Court’s judgment will be analysed (section 3). It ends with concluding remarks (section 4).

2.   Factual background

The Cour de l’Arbitrage du Sport (CAS) in Lausanne, Switzerland, has for decades been the main international forum for the settlement of sports disputes. It is, contrary to what its name may imply, not a court, but an arbitral institution administering arbitral proceedings in front of tribunals named by the parties.[7] CAS tribunals derive their jurisdiction from arbitration clauses that are usually part of the statutory framework of a sports association or competition.[8] Therefore, participating in competitions with such statutes requires athletes and sports clubs to submit their disputes to CAS arbitration by agreeing to the competition or association’s statutes.[9] CAS arbitral awards are not subject to revision, they are subject to the limited discretion for annulment by the Swiss Federal Tribunal or enforcement by another state court.

Royal Football Club Seraing (Royal Seraing) is a football club located in Belgium planning to advance to the professional tiers of Belgian football.[10] It is a member of the Royal Belgian Football Association, which is in turn a member of the European Union of Football Associations (UEFA) and FIFA.[11] In 2015, Royal Seraing partly sold the transfer rights to 4 players to an investor, Doyen Sports Investment Ltd. (Doyen Sports).[12] Under the FIFA framework, third party investors who are not a club or a player themselves are banned from holding such economic rights to a player.[13] For this reason, the FIFA disciplinary body imposed a two-year transfer ban and a fine of 150.000 Swiss francs on Royal Seraing.[14] On 9 March 2016, the club requested CAS arbitration based on the arbitration clause in the FIFA statutes claiming this decision was contrary to the FIFA rules. One year later, the CAS tribunal rejected Royal Seraing’s claim almost fully, reducing the transfer ban by six months and upholding the fine. The award has been subject to critique from legal scholarship. The CAS tribunal had equated the interests set out in the FIFA statutes to the ‘mandatory requirements in the general interest’ established by the Court’s case law.[15] One commentator saw this as a sign that the CAS tribunal lacked familiarity with the ‘subtleties’ of the legal doctrine developed by the Court. [16] However, an application by Royal Seraing to annul this award rendered by the CAS tribunal was rejected by the Swiss Federal Tribunal.[17]

During the same time, Royal Seraing and Doyen Sports had also started a parallel litigation against FIFA’s ban in the Belgian national courts. Based on provisions of civil procedural law enshrining the res iudicata principle into Belgian law, the Brussels Court of Appeal declared that it could not decide the case due to the existing CAS award.[18] Royal Seraing and Doyen then brought the case in front of the Belgian cassation court which referred two questions to the Court seeking this preliminary ruling.[19] These two questions, in essence, are: First, whether the application of these national provisions regarding res iudicata is barred by the principle of effective judicial protection in the case of an arbitral award that has only been reviewed by a non-EU court. And second, whether such an award can be granted rebuttable probative value vis-à-vis third parties by national law.

3.   Analysis

In its preliminary decision, the Court prioritised the need for an effective review of EU ordre public. In the Seraing judgment, it decided that if an award was not effectively reviewed, state courts shall not apply provisions that grant it res iudicata effect. In the following, the reasoning of the Court shall be discussed. First, context is given through the Court’s previous case law on arbitration (section 3.1). Second, the Court’s findings are analysed (section 3.2). Third, the judgment’s practical implications will be explored (section 3.3).

3.1.  Previous case law

The Court has commented on the compatibility on arbitral proceedings with European law multiple times in its history. After a few early decisions setting the stage, there has been highly relevant recent case law regarding investment arbitration as well as sports arbitration.

The first relevant Court case regarding international arbitration is the 1982 Nordsee-Judgment.[20] In this judgment, the Court declared that arbitral tribunals are not ‘courts of a member state’ as per Article 177 EEC (now Article 267 TFEU) and can therefore not refer cases for a preliminary ruling.[21] It based this decision on the fact that arbitration is voluntary in nature on one hand.[22]On the other hand, it argued that private arbitral tribunals lack a link to a member state since state courts have no ex officio power to partake in the process of opting for arbitration or the arbitral proceedings themselves, and since the member state itself has not empowered them as decision makers.[23] Finally, the court ruled that the only way for arbitral cases to be referred for a preliminary ruling would be by a state court in court assistance or enforcement proceedings.[24]

In 1999, the Court expanded on this judgment with its EcoSwiss decision. In this judgment, it ruled that Article 81 EC (now Article  101 TFEU) is part of the ordre public of the member states.[25] It noted that, in consequence, courts can only annul arbitral awards or deny their enforcement in ‘exceptional circumstances’ – when the rule of EU law violated by the tribunal is part of EU ordre public.[26] If posed in an arbitration, questions of community law which are not ordre public can therefore never be subjected to review by a court and referred to a preliminary ruling. This is accepted under community law because the specific interests of arbitral proceedings justify a limitation of effective judicial protection if favour of efficiency.[27]

Major developments for international arbitration within the EU came with and after the Achmea judgment from 2018. In three judgments, the Court ruled that member states violate their duties under Article 344 TFEU and the autonomy of EU law when they refer investor-state disputes against investors from other EU member states to arbitration.[28] Meanwhile, there have been three major decisions regarding sports arbitration: The European Court of Human Rights (ECtHR) had found in its Mutu and Pechsteinjudgment that due to the specific make-up of CAS arbitration in professional sports, the athletes’ consent to arbitration was not given freely.[29] It held that nevertheless, these ‘mandatory’ arbitration clauses in question did not violate Article 6(1) of the European Charter of Human Rights.[30] However, in the consecutive Semenya judgment, it ruled that mandatory arbitration warrants an especially thorough ordre public review.[31] The Court found in its ISU judgment that a mandatory arbitration clause, when combined with several other characteristics, could lead to a violation of EU competition law.[32] In this case, the violation of EU competition rules did not hinge on the fact that the arbitration clause was unilaterally imposed, but after finding violations in other facts of that case, the Court stated that the mandatory arbitration clause ‘reinforced the infringement’, showing that it considers mandatory arbitration problematic, but not an infringement in itself.[33] Therefore, the European courts have both acknowledged the limited scope of review the Court can exert over arbitral awards and the mandatory nature of sports arbitration clauses.

This line of jurisprudence has been picked up by the Ćapeta Opinion. AG Ćapeta argued, that limited review of arbitral awards can only be justified by the parties’ voluntary decision to enter into an arbitration agreement.[34] She asserted that the CAS arbitration between Royal Seraing and FIFA constitutes mandatory arbitration[35] that is moreover difficult to review due to its ‘self-enforcing’ character.[36] Therefore, she asserted that in cases like this one, the limited scope of an ordre public review does not satisfy the principle of effective judicial protection. She argued that rather, a full review, de facto a court revision, of the arbitral award is warranted.[37] She urged the Court to rule that CAS awards based on mandatory arbitration clauses should be fully reviewed.[38] This way, the Court could address any questions of EU law discussed in these arbitral proceedings in a preliminary ruling.

3.2.  The Court’s decision

The Court has largely rejected AG Ćapeta’s assessment. Notably, it did not mandate a full review of CAS awards. Rather than hinging its findings on the characterisation of CAS arbitration as ‘mandatory arbitration’, it focused on the need to safeguard EU ordre public. In the following, the Court’s findings on the main issues will be discussed: Res iudicata and probative value (section 3.2.1), mandatory arbitration (section 3.2.2), the standard of review demanded by the Court (section 3.2.3), the concept of self-enforcing norms (section 3.2.4) as well as proportionality (section 3.2.5).

3.2.1.   Res iudicata and probative value

The Court was asked whether the principle of effective judicial protection prohibits res judicata status and probative value of arbitral awards. It ruled that the principle of effective judicial protection would exclude the application of any national provision that ‘prevent[s] the national court […] from carrying out, indirectly, an effective review’ scrutinising whether an award complies with EU ordre public.[39] Res judicata however does not fully exclude review by state courts. Res iudicata is the basic principle that a decision by an earlier adjudication is final and binding and is barred from being relitigated in new proceedings between the same parties.[40] As the Belgian government pointed out during the proceedings[41] and as can be derived from the Belgian provisions cited by the Court in its judgment,[42] the res iudicata provisions at hand do not rule out the scrutiny courts give arbitral awards in recognition, enforcement and annulment proceedings. This internationally recognised practice is not specific to Belgian law and is in line with the NYC. The Court did not generally question the compatibility of the res iudicata provision with the principle of effective judicial protection.[43] Its decision implies: The principle of effective judicial protection stipulates an exception if there was no effective scrutiny of the award regarding EU ordre public. This exception is moreover limited to cases regarding ‘the pursuit of a sport as an economic activity within the territory of the European Union’ only.[44] Only under these two cumulative circumstances, the principle of effective judicial protection prohibits the res iudicata effect of an arbitral award.

Belgian national law gives an award probative value as evidence in court proceedings against third parties when it has res iudicata status.[45] This creates a presumption that the opposing party has to dispel.[46] The Court correctly assessed the rule as ‘intrinsically linked’ to the classification as res iudicata.[47] Probative value can be described as a specific consequence of barring an award from res iudicata effect.[48] While probative value is not absolute, it can shift the burden of proof. Such a shift happened in the case at hand: The Belgian Football Association, itself not a party to the CAS arbitration between Royal Seraing and FIFA, used the award in the Belgian court proceedings as proof that the FIFA statutes in question were not violating EU law. Royal Seraing ‘failed’ to disprove the presumption stipulated by the award.[49] Ultimately, despite the mere creation of a presumption, an award without res iudicata effect also does not have probative value.[50]

3.2.2 Mandatory arbitration

The classification of CAS arbitration as ‘mandatory arbitration’ has been at the heart of many proceedings[51] and discussions.[52] In the Ćapeta Opinion, the AG saw the voluntary character of most arbitrations as a cornerstone of their compliance with the principle of effective judicial protection.[53] E contrario, she asserted that a mandatory arbitration must be subject to stricter review by state courts.[54] It was this conclusion that sparked concerns that the Court’s decision might endanger the entire system of sports arbitration.[55] In the actual Seraing judgment, the Court agreed that CAS arbitration is not voluntary. However, notably, the judgment accorded this factor significantly less weight than had been anticipated. In line with its own jurisprudence,[56] that of the ECtHR in Pechstein[57] and very recently Semenya[58] as well as the Ćapeta Opinion,[59] the Court found CAS arbitration to be mandatory. It conceded that formally, professional sports associations’ statutes are contractual and voluntarily opted into by the athletes and clubs.[60] Ultimately, it found that these clauses, even if contractual in nature, were ‘unilaterally imposed’ by the associations and therefore mandatory. Further, it explained that this system has to be seen in context with the larger system of sports associations, which act like governance structures with the power to regulate, oversee and impose sanctions.[61] The Court broadly referenced the existing case law, furthering the classification as mandatory arbitration’s development into established European case law.

The Court’s assessment of what consequences the classification as mandatory arbitration has was highly anticipated. AG Ćapeta, with reference to the EcoSwiss case, argued that the limited review of arbitral awards is only justified by the voluntary nature of arbitration.[62] In consequence, she considered the limited review in mandatory arbitration a violation of the principle of effective judicial protection.[63] However, her interpretation of the referenced paragraph from EcoSwiss is rather narrow. EcoSwiss did not solely base the acceptance of limited review on arbitration’s voluntary nature. Instead, the Court asserted a more general legitimate objective to safeguard the ‘interest’ of arbitration proceedings to be efficient.[64] In Seraing, the Court not only neither followed nor discussed AG Ćapeta’s interpretation. On the contrary, it reiterated that broader legitimate objectives justify arbitration limiting effective judicial protection, as will be discussed below.[65]

Contrarily to what some feared, the Court did not derive groundbreaking consequences from its finding that CAS arbitration is mandatory. While it contended that ‘a distinction must be drawn’ between voluntary and mandatory arbitration,[66] this distinction did not materialise into a match-winning argument. The operative part of the judgment does not even mention this distinction.[67] In consequence, mandatory arbitration does not constitute a hard criterion for the exclusion of res iudicata effect. The Court’s actual focus rests on the fact that, in many CAS arbitrations, there will be no EU member state court scrutinising the award in terms of EU ordre public.[68] This phenomenon does not stem from the mandatory nature of CAS arbitration. Rather, it is primarily attributable to the fact that CAS arbitration is seated in Switzerland.[69] Consequently, annulment proceedings are subject to the jurisdiction of the Swiss Federal Tribunal.[70] Furthermore, due to FIFA’s organizational structure and its headquarters located in Switzerland, a substantial number of arbitrations do not become subject to a traditional court enforcement procedure.[71] Even then, enforcement proceedings against FIFA are also conducted in Switzerland. The mandatory character of arbitration is only an addition to the Court’s reasoning in the context of this argument. The above-described deprival of court review regarding EU ordre public constitutes a violation of effective judicial protection – ‘a fortiori’ in mandatory arbitration.[72] Thereby, the Court accounts for the mandatory nature of CAS arbitration in its discussion of effective judicial protection but does not consider it the decisive factor. The expression ‘a fortiori’ implies that the deprivation of EU ordre public court review limits effective judicial protection even without mandatory arbitration. Meanwhile, there is no indication that the court would see a violation where a mandatory arbitration enables review in terms of EU ordre public. In conclusion, the Court does see the mandatory nature of CAS arbitration as an aggravating circumstance within its more general issues with CAS arbitration, but not as a violation in itself. This evaluation of mandatory arbitration is consistent with the ISU judgment of 2023, where the Court had also taken it into account as part of its larger consideration.[73]

3.2.3.   Standard of review

The Court has rejected the Ćapeta Opinion’s demand of a full review of CAS awards. As with mandatory arbitration, AG Ćapeta’s bold stance on the standard of review was subject to heavy criticism[74] and ultimately rejected by the Court. It ruled that a limited review to provisions that constitute EU ordre public generally satisfies the requirements of the principle of effective judicial protection.[75] This review must however be ‘effective’.

The Court supported this decision by referencing previous case law and did not discuss alternative standards, including AG Ćapeta’s proposal of full review.[76] It did not elaborate on why it understands Article 19 TEU, Article 47 CFREU this way. Yet, a more detailed interpretation of the articles would come to the same conclusion. While the Court itself is not bound by the NYC,[77]it might take the duties of the member states under international law into account when interpreting treaty provisions.[78] The NYC does not just bind the member states but is a widely accepted part of the international legal order. [79] Therefore, the Court’s decision to integrate the ordre public standard into the principle of effective judicial protection instead of mandating full review is convincing.

The Court has moreover specified which provisions of EU law it considers ordre public. It reiterated its previous stance that Article 101 and 102 TFEU constitute EU ordre public.[80] Additionally, named Articles 45, 56 and 63 TFEU as EU ordre public, since they are foundational to the single market at the core of EU law.[81] This list does not appear to be exhaustive. Firstly, the Court only designated the principles ‘part of’ EU ordre public.[82] Secondly, there is no reason given why Articles 45, 56 and 63 TFEU would constitute ordre public, but not Article 34 TFEU, which is expressly established as a foundational principle of the single market alongside the other three in Article  26(2) TFEU.[83] Thirdly, the Court seemingly intended to exclusively list principles of EU ordre public relevant in the underlying dispute.[84] Therefore, the Court listing Articles 45, 56 and 63 TFEU implies it also considers Article 34 TFEU and possible other foundational principles of EU law to be EU ordre public.

The Court refrained from specifying whether there is a severity threshold for a violation of these provisions to be considered a violation of EU ordre public. It is the author’s view that the meaning of ordre public regarding these articles should be limited. This is because Articles 34, 45, 56 and 63 TFEU have a very broad scope.[85] The Court and its integration-friendly interpretation have built a wide protection that makes even small barriers to the foundational freedoms hard to justify.[86] If this liberal approach were transplanted to enforcement of foreign arbitral awards, the EU might become a hostile region for arbitration parties. Since ‘foreign’ in this context refers to the state level, such a far-reaching interpretation of ordre public would also impair commercial arbitration between EU parties. To prevent this, the Court should set a high standard so that only especially egregious violations of the articles mentioned above constitute a violation of EU ordre public.

According to the Court, the CAS arbitration between Royal Seraing and FIFA ultimately did not meet the requirements of the principle of effective judicial protection. The crux lies with the Court’s demand for an ‘effective’ review of EU ordre public.[87] The Court requires awards to be subject to ordre public review by an EU court: Only EU courts will consider EU ordre public and may submit preliminary references to the Court.[88] This requirement is met as long as the seat of arbitration is within the EU. In those cases, parties can file for annulment of the award with a court of that EU member state.[89] It is also met when enforcement is conducted in an EU member state, since the enforcement procedure includes ordre public review. To the contrary, many CAS arbitrations, where the seat of arbitration is in Switzerland and enforcement is conducted by or against FIFA. The Court has also made clear that mere declaratory relief by EU courts stating that an awards violates EU ordre public outside of enforcement proceedings[90] does not satisfy its requirement of effective ordre public review – courts must be able to derive consequences from their finding.[91]

The Court has not generally called into question the internationally recognised ordre public standard.[92] Yet, it has qualified this standard to expect ‘effective review’ of arbitral awards as to realise parties’ rights under EU law.

3.2.4.   The self-enforcing nature of CAS arbitration

AG Ćapeta described the FIFA statutes as a ‘self-enforcing’ system.[93] She based this on the fact that sports associations have their own governance structure that includes regulatory power and sanctions.[94] Most claimants in CAS arbitration seek to nullify regulatory decisions by associations or declare sanctions unlawful.[95] Thereby, the award will often establish that neither party has an obligation to further action such as payment.[96] Only in rare cases a payment claim or a regulatory action will have to be enforced through courts.[97] For instance, when a CAS tribunal decides that an athlete must be temporarily banned from professional leagues based on a positive doping test, the network of football associations under FIFA could ‘enforce’ the award by refusing his registration for any competition. Actions like this are more akin to complying with an award than enforcement. In commercial arbitration, neither an award that concludes that there are no claims to be paid between the parties nor an award that the respondent complies with by paying without enforcement proceedings are considered self-enforcing.[98] Actual enforcement of CAS awards may still be conducted. This includes enforcing FIFA’s obligations to carry out regulatory acts found by the tribunal. However, any enforcement against FIFA would take place in Switzerland, outside the reach of EU courts.

This may explain why the Court refrained from adopting the AG’s description of the FIFA system as ‘self-enforcing’. In any case, the Court did discuss the substance of her argument on the FIFA system to show how many cases involving EU parties can never end up in enforcement procedures within the EU.[99] However, nothing in the judgment indicates that ‘self-enforcing systems’ are necessary for this situation. For the standard posed by the Court – effective review of EU ordre public – it suffices that neither annulment nor enforcement proceedings happen at an EU court, regardless of whether that means enforcement through a third state’s court or through non-court means of realising the award’s contents. The key issue is not the system of enforcement – it is the fact that only EU courts review the compliance with EU ordre public and can make preliminary references to the Court. In sum, no encroachment of such ‘self-enforcing systems’ will follow from this judgment. Rather, just like in any other arbitration case, the Court would question whether a cross-border enforcement hinders EU ordre public review.

3.2.5 Justification of arbitration as a legitimate objective

Another noteworthy idea contained in the judgment is the Court’s consideration of possible legitimate objectives of sports arbitration. The Court had shown as early as its EcoSwiss judgment that it will weigh possible obstacles arbitration poses to the principle of effective judicial protection against legitimate interests of arbitral proceedings.[100] Methodologically, it thereby used these objectives of arbitration in the same way it accounts for ‘mandatory requirements in the general interest’[101] when assessing whether restrictions of single market principles are justified. AG Ćapeta interpreted the EcoSwiss judgment narrowly, so that its voluntary nature can be the only justification for diminished judicial protection in arbitration.[102] The Court did not follow this interpretation. Rather, it broadened its scope for legitimate objectives of arbitration that may justify a diminished effectiveness of judicial protection. In the context of sports arbitration, it stated that a diminished effectiveness of judicial protection may be justified by ‘legitimate objectives’ and named as such the uniform handling of sports disputes and the consistent interpretation of rules applicable to professional sports competitions.[103] Consequently, even if the Court identifies a conflict between effective judicial protection and arbitration in the future, it will not necessarily take action against it. Instead, it might be convinced by parties showing the value of diversions from the standard EU system of judicial protection.

3.3.  Legal and practical implications

The reasoning of the Court posed interesting questions on the relationship between EU law and the NYC (section 3.3.1) and will have deeper implications for arbitral practice (section 3.3.2).

3.3.1.   The role of the NYC

As per the Court’s decision, CAS arbitration threatens effective judicial protection. In contrast, there is no indication that it inherently threatens the NYC as well. Contrary to all EU member states, the EU itself is not a signatory to the convention.[104] As a consequence, the Court made clear in the Seraing judgment that the EU is not bound by the NYC.[105] Since the member states have an obligation under the NYC to recognise foreign awards as res iudicata, denying recognition violates international law.[106] The provisions on res iudicata in Belgian civil procedural law that were in question in the Seraing case are constructed in harmony with these duties.[107]

The Court has moreover used its monopoly of interpreting EU law to specify which provisions of EU law national courts must consider ordre public under the NYC. AG Ćapeta’s assertion that the NYC is not applicable to mandatory arbitration[108] was not addressed and is unlikely to arise as a prevailing interpretation of the convention.[109] Since the scope of application of the NYC is interpreted autonomously, the Court could not have dictated a new interpretation conforming to perceived necessities of EU law either way.[110]

The EU and the Court themselves are not bound by the NYC but have the power to influence the way member states implement it. This asymmetrical power over the enforcement of arbitral awards must be wielded responsibly, or other states will themselves question whether they can come up with reasons not to enforce arbitral awards in favour of EU parties. For example, after the Court has damaged the effectiveness of its renowned sports tribunal and ordered EU courts to deny res iudicata effect to awards declared lawful by its federal tribunal, Switzerland might be inclined to make the enforcement of claims held by EU parties against Swiss parties more burdensome. The system of enforcement under the NYC should therefore be safeguarded against overreach by the Court. The EU could consider becoming a party to the NYC itself and therefore binding its institutions the same way states are bound. Even without such an accession, the Court interprets the rules of EU law with regard to the member states’ duties under international law.[111]

The Court has called into question the international consensus on the NYC. By denying res iudicata to awards that have been produced in conformity with the convention, it is undermining the duty to fundamental recognition of foreign awards. It is part and parcel to the NYC’s system that not every state court has a say on whether awards should be internationally recognised. Where the Court considers this a deprivation of effective judicial protection, it is not acting in accordance with the spirit of the convention. In this vein, EU law must be read in harmony with the NYC, not in conflict with it.

3.3.2.   Practical outcomes

As laid out above, this judgment will affect all CAS proceedings which do not open the possibility of an enforcement procedure with an EU court. In these cases, an effective review of EU ordre public cannot be guaranteed, wherefore the resulting award will not have res iudicata effect within the EU. The CAS will supposedly tackle this issue by opening an EU venue.[112] When the seat of those EU CAS arbitrations is within the EU, parties can always file for annulment in an EU member state and therefore receive the necessary effective ordre public review.

The Court’s requirement of ‘indirect’ ordre public review seems to contradict its rejection of declaratory relief.[113] Remedies of declaratory relief empower a state court to declare that it does not recognise the validity of an arbitral award in cases where it can neither annul the award nor play a role in enforcement proceedings.[114] The Court has argued that such measures are not sufficient to fit the effective judicial protection standard because courts need to be able to draw legal consequences from their decision.[115]However, this is precisely the case in res iudicata proceedings: If a court could declare non-recognition of an award and thereby nullify its res iudicata effect. Therefore, in these cases, declaratory relief does have a legal consequence the court could draw. Courts have this exact power already, for example in Germany.[116] This has led some to conclude that all the Court did was mandate the creation of something that already exists.[117] This reading contradicts the Court’s express rejection of declaratory relief as a solution.[118]

To resolve this contradiction, the Court’s decision must be interpreted as allowing for indirect declaratory relief within the res iudicata proceedings. Without the option of declaratory relief, courts would have no option but to automatically deny res iudicataeffect to all awards that fit the mould of the Court’s judgment. This would mean that all awards of this nature would lose their res iudicata status even if they are fully in line with EU ordre public. In the opposite case, the courts in every res iudicata case could perform a review of whether the award contradicts EU ordre public. Thereby, they could recognise awards in line with EU ordre public and filter out those that do not comply with it. Such an execution of the Court’s judgment would be preferable for parties with an interest in the award’s standing while also protecting opposing parties from being deprived of their rights granted by EU ordre public. Moreover, it would lead to a more thorough jurisprudence reviewing CAS tribunals’ compliance with EU ordre public which strengthens the general effectiveness of EU law. Where national law does not already expressly provide for such a measure of declaratory relief, courts should derive it directly from Article 19 TEU, Article 47 CFREU and apply it via effet utile. With this solution, the Court’s doom scenario in which a CAS award is fully exempt from EU ordre public review, could not even occur. The denial of res iudicata effect on the other hand would remain ultima ratio.

The Court has expressly limited its judgment to disputes ‘linked to the pursuit of a sport as an economic activity within the territory of the European Union.’[119] Therefore, commercial arbitration outside the field of professional sports is not directly affected by the judgment. It appears somewhat intuitive to treat professional sports as an entity that requires to be evaluated separately. It is not common that most actors of an industry fall under EU jurisdiction while the administration and dispute resolution take place outside the EU. This discrepancy in applicable law and jurisdiction might create unique circumstances that the Court may have considered. However, the Court did not expressly discuss this distinction between sports and non-sports disputes in its reasoning. It holds true that the judgment includes reasoning on the specific circumstances of the system of FIFA governance and ‘mandatory’ CAS arbitration. This specific system may be unique but is not inherent to sports in any way. Ultimately, sports association statutes are multilateral contracts that contain broad arbitration agreements. Commercial disputes might also be considered mandatory arbitration or self-enforcing by the Court on similar grounds. As established above, effective review of EU ordre public is mainly hindered not by the system of professional sports, but the fact that both annulment and enforcement regularly occur outside the reach of the EU court system. Therefore, the same reasoning the Court uses for CAS arbitration might apply to commercial arbitration seated outside the EU. And even if there must be a clear distinction between sports arbitration and non-sports arbitration, this raises the question of what does or does not constitute sports arbitration. It might be argued that licensing agreements regarding TV coverage of sports events, sponsoring contracts, or M&A transactions between club owners and their companies are just as ‘linked to the pursuit of a sport as an economic activity’ as disputes between athletes, clubs and associations. In conclusion, if this qualification in the judgment was the Court’s attempt to limit its effects to sports arbitration, this attempt might not prove fully successful.

If the Belgian courts deny the res iudicata effect of the arbitral award, the Seraing proceedings will continue with a very uncertain outcome. Since the award is recognised and enforceable outside the EU, it might clash with the Belgian court decision which will be treated as definitive within the EU. This might lead to conflicting decisions, with enforcement depending solely on practical feasibility. Royal Seraing might avoid paying fees since its assets are located in Belgium where the CAS award could not be enforced. The lack of payment might lead to football associations excluding the club from competitions although they might refrain from this drastic choice. The settlement of the dispute between the club and FIFA will therefore boil down to national and association politics, not law.[120] This is precisely the risk the judiciary takes whenever it hides behind national borders, the same national borders arbitration often excels at overtaking.

4.   Conclusions

Legal scholarship’s many football metaphors are flawed. In legal disputes, it is not always easy to draw a line between victory and defeat. In its Seraing judgment, the Court seems to have managed a remarkable conciliatory success: Those that were demanding a stricter scrutiny of CAS seem satisfied, those who feared the death of sports arbitration relieved. By focusing on the effective enforcement of EU ordre public, the Court has affirmed a standard that has been internationally respected for a long time. Aside from this focus, open questions remain. EU courts should only deny res iudicata effects after finding a violation of EU ordre public in their indirect review. Minimising the cases where res iudicata is denied would moreover help controlling the risk of conflicting decisions. Future CAS arbitrations will be in the clear as soon as the EU venue is opened, making annulment proceedings in the EU possible. The UEFA has already taken the first step by creating the option of seating arbitration in Dublin in its statutes.[121]

Finally, the Court should act responsibly when affecting the NYC to protect its globally functional system of enforcement. It has already undermined this system with its express rejection of declaratory relief as an effective remedy and the encroachment on states’ general duty to recognise awards. A conflict between the Court and the NYC would be a loss for many. And as football and law are not comparable: Just because there are losers, there might not necessarily be winners.