Recognition and Enforcement of Judgments on the Existence and Validity of an Arbitration Clause under the Brussels Convention

Abstract

THE BRUSSELS Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (‘Brussels Convention’) is based on Article 220 of the Treaty of Rome, which calls the Member States of the European Economic Community (‘EEC’) to enter into negotiations with each other for the ‘simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards’. The Brussels Convention excludes arbitration from its subject matter. This conclusion is evidenced at Article 1(2)(4) of the Brussels Convention, which states that ‘the Convention shall not apply to: … (4) arbitration’. In retaining this exclusion, the Committee of Experts which prepared the Brussels Convention explained that: > There are many international agreements on arbitration. Arbitration is, of course, referred to in Article 220 of the Treaty of Rome. Moreover, the Council of Europe has prepared a European Convention providing a uniform law on arbitration, and this will probably be accompanied by a Protocol which will facilitate the recognition and enforcement of arbitral awards to an even greater extent than the New York Convention.1 The Accession Conventions, negotiated between the Contracting States and the new Member States of the EEC in compliance with Articles 63 of the Brussels Convention and 220 of the Treaty of Rome, contain the same exclusion of arbitration. For example, the report on the Greek Accession Convention declares: ‘Arbitration, a form of proceedings encountered in civil, and in particular, commercial matters is excluded because of the existence of numerous multilateral international agreements in this area.’2 The issue of whether the Brussels Convention would apply to proceedings concerning the existence and validity of an arbitration clause and to the judgments rendered thereon arose during the preparation of the Convention of 9 October 1978 on the Accession of the …