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

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 UK has voted to leave the EU and this will take place on exit day as defined in section 20 of the European Union (Withdrawal) Act 2018. This has implications for practitioners considering which courts have jurisdiction to determine a dispute. For guidance, see Practice Note: Brexit—jurisdiction. For links to relevant guidance on the effect of the UK leaving the EU without a deal when dealing with matters of jurisdiction, see: Cross border considerations—checklist—Jurisdiction—Brexit specific.

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