May Court Judgments that Disregard Arbitration Clauses and Awards be Enforced under the Brussels and Lugano Conventions?

Abstract

The Brussels and Lugano Conventions on Court Jurisdiction and Enforcement of Judgments greatly facilitate within Europe the enforcement in one Contracting State of court decisions from another Contracting State.1 What happens, however, if the court which rendered the decision assumed jurisdiction in spite of an arbitration clause or even in spite of an award rendered on the same subject matter between the same parties? Arbitration clauses and awards are entitled to recognition and enforcement under the New York Convention 1958, to which all states bound by the Brussels and Lugano Conventions have also adhered. The question then arises: to what extent is a court decision, rendered in spite of an arbitration clause, enforceable under the Brussels or Lugano Conventions? For example, in the past Belgian courts have decided that an arbitration clause, included in a distribution agreement which covers Belgian territory, is null and void whenever the dispute enters...