Brussels I (recast)—impact on arbitration
Produced in partnership with Andrew Rose and Edward Crossley of 4 Stone Buildings
Brussels I (recast)—impact on arbitration

The following Dispute Resolution guidance note Produced in partnership with Andrew Rose and Edward Crossley of 4 Stone Buildings provides comprehensive and up to date legal information covering:

  • Brussels I (recast)—impact on arbitration
  • The arbitration exclusion
  • An aid to the interpretation of the arbitration exclusion—recital 12
  • Worked examples
  • Example 1—anti-suit injunction not permissible in support of arbitration
  • Example 2—a preliminary finding by a foreign court that an arbitration is invalid does not bind an arbitral tribunal
  • Example 3—a foreign substantive judgment binds arbitral tribunal
  • Example 4—a foreign arbitral award takes precedence over a foreign substantive judgment
  • Example 5—an arbitral award made in the Member State in which it is enforced takes precedence over a foreign substantive judgment

Brexit: The UK's departure from the EU on exit day, ie Friday 31 January 2020, has implications for practitioners considering jurisdiction. For guidance, see: Cross border considerations—checklist—Jurisdiction—Brexit specific.

This Practice Note considers the impact on arbitration of the provisions within Regulation (EU) 1215/2012, Brussels I (recast) found in Article 1(2)(d) and recital 12. Setting out the provisions within recital 12, the Practice Note considers the changes that have been made to the previous provisions in the precursor to this regulation, Regulation (EC) 44/2001, Brussels I. It then provides a series of worked examples to show the practical impact of the changes when dealing with different scenarios which involve an arbitration.

The arbitration exclusion

Article 1(2)(d) of Regulation (EU) 1215/2012, Brussels I (recast) provides that the regulation does not apply to arbitration. This article contains identical wording, without alternation, to the precursor in Article 1(2)(d) of Regulation (EC) 44/2001, Brussels I. Article 1(2)(d) of Regulation (EU) 1215/2012, Brussels I (recast).

The only new substantive provision relevant to arbitration is found in Article 73(2) of Regulation (EU) 1215/2012, Brussels I (recast). This provides that the regulation does not affect the application of the 1958 New York Convention. This may have been the position under Article 71(1) of Regulation (EC) 44/2001, Brussels I, but it is nonetheless helpful for this matter to have been