The exclusion of arbitration in the EU Anti-SLAPP Directive: a counterproductive decision

Abstract

Directive (EU) 2024/1069, known as the Daphne Law, establishes the first EUwide framework against Strategic Lawsuits Against Public Participation (SLAPP). However, the legislator’s decision to exclude arbitration from its scope creates a regulatory gap that undermines the coherence, effectiveness and fundamentalrightsoriented purpose of the Directive. This article argues that excluding both commercial and investment arbitration incentivises powerful actors to use private adjudication mechanisms to silence journalists, activists, academics and publicinterest advocates. The study performs a systematic analysis of the Directive’s legislative history, the EU framework on civil judicial cooperation and relevant case law on the recognition of arbitral awards, complemented by doctrinal sources and international arbitral ethics standards. The findings show that omitting arbitration not only weakens antiSLAPP protection but also threatens the legitimacy of arbitration by enabling abusive procedural strategies. The article concludes by proposing the extension of antiSLAPP safeguards to arbitration and the use of publicpolicy mechanisms to prevent the enforcement of awards with chilling effects.