Arbitration and the Free Movement of Judgments

Abstract

ON 1 MARCH 2002, the Brussels I Regulation1 (‘the Regulation’) came into force as the new regime for regulating jurisdiction and the recognition and enforcement of judgments between EU Member States. It replaces the Brussels Convention2 as between all Member States except Denmark. To a large degree the Regulation reproduces the substance of the Brussels Convention; the main innovation is that the rules are now contained in a regulation rather than an international treaty. Those involved in arbitration may have taken little notice of the change because Article l(2)(d) of the Regulation incorporates the same exception for ‘arbitration’ as the Brussels Convention. However, although the Regulation represents continuity with the Brussels Convention, the European Commission is required within five years to submit proposals for adaptations if needed.3 Amendment of the Regulation can be achieved with much greater ease than the Convention. Accordingly, those involved in arbitration have a good opportunity to propose improvements in the law regulating the jurisdiction of court proceedings within the EU relating to arbitration. The purpose of this article is to examine the practical application of the exception for arbitration in the context of the Regulation. The chief problems that have arisen in applying it will be investigated, looking in particular at the litigation in this area under the Brussels Convention. It will also be necessary to identify the principles and policy objectives which must be given priority in maintaining effective systems for arbitration within EU states. The aim is to highlight areas where improvement could be achieved, with a view to proposals for revision of the Regulation. Amendment of the main international instrument relating to arbitration, the New York Convention on recognition and enforcement of foreign awards4 (‘the New York Convention’), is probably not a realistic aim in the short term …