The Arbitration Exclusion under the Brussels Regime: A Story of Colliding and Sinking Ships

Abstract

‘O Captain! My Captain! our fearful trip is done’. In Walt Whitman’s poem ‘O Captain! My Captain!’, the ship arrived at the harbour with cheering crowds awaiting its arrival. In contrast, the ships on which the arbitration exclusion sailed under the Brussels Regime were assigned a different destiny. They either ran into collisions or sank to the bottom of the ocean. In this regard, the Court of Justice of the European Union (CJEU) was requested to rule on the scope of the arbitration exclusion. In particular, the absence of a definition of the term ‘arbitration’ gave rise to uncertainty and controversy which the CJEU was asked to resolve. The approach that the CJEU pursued to resolve this issue changed significantly throughout the history of the arbitration exclusion, reflecting the CJEU’s growing mistrust towards arbitration. This has left a mark on the arbitration landscape within the European Union (EU) that has earned criticism from the international arbitration community. In the wake of the CJEU’s most recent ruling concerning the arbitration exclusion, and the following reaction of the English High Court, this article evaluates whether the arbitration exclusion has followed the ships on which it sailed to the bottom of the ocean, or whether it was handed a lifebelt for its continued existence. Arbitration, Litigation, Award, Arbitration Exclusion, European Union, Brussels I Recast, European Court of Justice, Parallel Proceedings, West Tankers, London Steamship Owners