Academic journal article American University Business Law Review

The Interface between Arbitration and the Brussels Regulation

Academic journal article American University Business Law Review

The Interface between Arbitration and the Brussels Regulation

Article excerpt

Introduction

On January 10, 2015, a revised version of the Brussels I Regulation on international jurisdiction and recognition and enforcement of judgments entered into force1 replacing the original regulation of 2000 (old Brussels Regulation).2 The new regulation is also referred to as the Brussels Regulation Recast, EEX Ibis or Ibis Brussels. By virtue of article 66, it applies only prospectively i.e., in respect of legal proceedings instituted on or after 10 January 2015. The Brussels I Regulation applies to all Member States of the European Union including Denmark.3

The amendment to the old Brussels Regulation has not yet led to an adjustment of the Lugano Convention of 20 074 (also called the Parallel Convention) so that in relations with Norway, Switzerland and Iceland different rules and solutions than those under the Brussels Regulation may apply.

In this article, the Brussels Regulation is discussed and analyzed in its relation to arbitration in view of some relevant amendments and the questions and problems that they raise. During the negotiations on the new regulation, it was precisely this relationship that caused many controversies and heated debate in the arbitration community. For a better understanding of these questions and problems, some fundamental questions also need to be addressed as they are relevant for the discussion on the amendments brought about by the new regulation and the identification of remaining issues.

The basic question is, in this respect, how the exclusion of arbitration in article 1, second paragraph under (d) of the Brussels Regulation is to be interpreted and applied. This contribution, thus, in essence concerns the interpretation of a single word of the Brussels Regulation. This provision reads as follows:

"This Regulation shall not apply to:

d) arbitration

The legislative history of this provision is discussed first in relation to the earlier versions of the Brussels system as of its original manifestation in 1968. This article then discusses the case law of the Court of Justice (now the Court of Justice of the European Union) concerning this provision. In a third section, the negotiations on the arbitration exception at the occasion of the recasting of the Brussels Regulation will be summarized as well as the various proposals presented leading to the final solution of the new regulation. Finally, this solution is analyzed and a number of problems raised by the Regulation or unsettled by it will be discussed.

II. From the 1968 Brussels Convention to the 2000 Brussels Regulation

Article 1, second paragraph of subsection (4) of the original 1968 Brussels Convention6 provided already simply that it did not apply with respect to "arbitration." From this, one could infer that both the jurisdiction and the recognition and enforcement rules of the 1968 Convention were separate from any rules applicable in or in relation to arbitration. The explanatory report to the 1968 Convention of an official of the Belgian Ministry of Foreign Affairs, Jenard, in this respect made reference to international conventions on arbitration and to the Uniform Law of the Council of Europe on arbitration.7 On that basis, the Jenard report drew the conclusion that the 1968 Convention did not apply to (1) the recognition and enforcement of arbitral awards; (2) the determination of international jurisdiction of national courts in disputes concerning arbitration such as setting aside procedures; and (3) the recognition of judgments of national courts concerning disputes in relation to arbitration.8 Outside the arbitration context, the Jenard report stated in general terms that the exclusions as to the application of the 1968 Convention were to be determined on the basis of the primary object of the proceedings and the exclusions were, thus, inapplicable if they only related to subsidiary points in the main proceedings or were raised only in preliminary proceedings. …

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