6 Juridical Trib. 7 (2016)

handle is hein.journals/juridtrib6 and id is 1 raw text is: 





                        STUDIES AND COMMENTS

   International arbitration and its exclusion from the Brussels regime

                                                      Ph D. student Hamed ALAVT
                                              Student Tatsiana KHAMICHONAK2



        Abstract
        The Brussels regime, which regulates the matters of transnational litigation
excludes arbitration from its scope. Upon formation of the Brussels regime the existing
instruments concerning arbitration - the United Nations Convention on Recognition and
Enforcement of Foreign Arbitral Awards and the 1961 European Convention on
International Commercial Arbitration - were believed to be sufficient. The original Brussels
Convention 1968 on recognition and enforcement of judgments delivered in the courts of
the EU Member States expressly provided for the exclusion of arbitration. The following
Brussels I Regulation3 followed the trend and reinforced the exclusion of arbitration from
their material scopes. The rationale for doing so was primarily the prevention of parallel
proceedings and irreconcilable judgments. The arbitration exclusion from the Brussels
regime has caused a fair amount of confusion, especially regarding the extent and limits of
the exclusion. That is, whether the arbitration agreement, the arbitral award and its
consequences are covered by the exclusion or they may fall under the scope of the Brussels
regulation if they constitute only an incidental question to the main cause of action ?' The
confusion was illustrated in the ECJ judgment West Tankers, which generated negative
feedback from the arbitration community and indicated the need for reform. The recently
adopted Recast Regulation6 took it upon itself to clarify the relationship between
arbitration and the EU regime of transnational litigation. The exclusion is reinforced yet
again and its boundaries are specified in the Preamble. However, whether or not the
concerns about the extent and objectives of arbitration exclusion have been at present
eliminated, remains to be seen.

        Keywords: international arbitration, litigation, the EU law, Brussels regulation,
Brussels recast

JEL Classification: KI 1, K20, K30


  Hamed Alavi - MBA. LLM. PhD. Candidate, Lecturer Tallinn Law School, Tallinn University of
  Technology, Estonia, hamed.alavi@ ttu.ee.
2 Tatsiana Khamichonak - Tallinn Law School, Tallinn University of Technology, Estonia,
  tatsiana.khamichonak@ hotmail.ee.
3 Regulation No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil
  and Commercial Matters, OJ 2001 L 12 p.1.
4 Moses, M 2014, 'Arbitration/Litigation Interface: The European Debate', Northwestern Journal of
  International Law & Business, vol. 35, no. 1, pp. 1-47.
5 Case C-185/07, Allianz Spa v. West Tankers, Inc., 2009 E.C.R. 1-00663.
6 Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on
  jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
  (recast), OJ L351 p. 1.

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