The Recast Brussels I Regulation and Arbitration: Revisited or Revised?

Abstract

The revision of the Brussels I Regulation has come to an end. During the revision process the exclusion of arbitration from the scope of the Regulation has been much debated. This debate was not only ignited by the revision of the Regulation, but also by the decision of the European Court of Justice (ECJ) in the West Tankers case. The predominant interpretation of the existing exclusion of arbitration from the scope of the Regulation entails that a judgment disregarding or breaching an arbitration agreement will circulate in the European Union according to the rules of the Regulation. This entails an increased risk of parallel proceedings and conflicting decisions because the parties race to pursue both court litigation and arbitration proceedings. These implications have not been amended by the recast Regulation, which keeps the existing exclusion of arbitration from the scope of the Regulation. However, the recast Regulation seeks to clarify the arbitration exclusion. Moreover, the adopted approach seeks to avoid the consequences of the predominant interpretation of the arbitration exclusion made apparent by the ECJ in the West Tankers judgment.