Arbitration in the EU

 

Arbitration is expressly excluded from the scope of application of the Brussels Regulation, which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters in the EU (44/2001/EC). However, a recent decision of the European Court of Justice (ECJ) has raised criticism and fear of court interference in arbitration proceedings in the EU, which the exclusion of arbitration from the Brussels Regulation was designed to avoid.

In the West Tankers decision of February 2009, the ECJ declared unlawful an anti-suit injunction by an English court to restrain litigation in Italy because the parties had agreed to arbitration in London (Allianz SpA v West Tankers, Case C-185/07). According to the ECJ, the Italian court had jurisdiction over the merits of the claim under the Brussels Regulation and, by extension, the preliminary and incidental question of the validity of the parties’ arbitration agreement.

In September 2010, the European Parliament confirmed that it strongly opposed the (even partial) abolition of the exclusion of arbitration from the scope of the Brussels Regulation (which could be the consequence of the West Tankers decision). In December 2010, the European Commission issued a proposal pursuant to which the courts of the place of arbitration and arbitral tribunals would have priority jurisdiction to decide on the validity of an arbitration agreement (see News brief “Brussels Regulation: the Commission’s proposals for reform”). It seems to be a step in the right direction. If adopted, it would help to ensure the exclusion of arbitration from the Brussels Regulation and limit court interference in the arbitration process in the EU.

Matthew Secomb and Christophe von Krause are partners, and Paul Giraud is an associate, in the Paris office; David Goldberg and Michael Turrini are partners, Anthony Lavers is Counsel, and Julia Zagonek and Dipen Sabharwal are associates, in the London office; Dr Patricia Nacimiento is a partner, and Christian M Theissen is an associate, in the Frankfurt office; Aloke Ray is a partner, Nandakumar Ponniya is a local partner, and Matthew Shaw is an associate, in the Singapore office; Ola Nils-son is Counsel in the Stockholm office; and Heather Clark is an associate in the New York office of White & Case LLP.

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