The Commission’s Proposal to Amend the Arbitration Exception in the EC Jurisdiction Regulation: How ‘Much Ado about Nothing’ Can End Up in a ‘Comedy of Errors’ and in Anti-sui

Abstract

This article analyses the Proposal to amend the arbitration exception under the Brussels Jurisdiction Regulation. It maintains the view that the deletion of the arbitration exception either completely or partially is undesirable. The main reason is that the Proposal would substantially influence the existing regulatory framework on arbitration in the EU Member States. In particular, the critical view is expressed on the effects that the Proposal would have on the applicability of the 1958 New York Arbitration Convention. Besides, it discusses a number of major deficiencies in the wording of the proposed amendments. Reasons are given as to why the interface of arbitration and litigation would be more appropriately dealt with in a separate instrument than within the context of the Regulation. Finally, it suggests more efficient methods to enhance the effectiveness of arbitration agreements should the EU legislator opt to pursue further the idea of a partial deletion of the arbitration exception.