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 practice 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
  • Impact of UK’s departure from the EU
  • The arbitration exclusion
  • An aid to the interpretation of the arbitration exclusion—recital 12
  • Member state courts may decide issues ancillary to an arbitration (recital 12, para 1)
  • Rulings by Member State courts concerning whether arbitration agreements are null and void, inoperative, or incapable of being performed do not have to be recognised or enforced in other Member State courts (recital 12, para 2)
  • A judgment of a Member State court following a finding that an arbitration agreement is null and void, inoperative, or incapable of being performed must be recognised and enforced by other Member State courts (recital 12, para 3)
  • Brussels I (recast) does not apply to ancillary proceedings to arbitration (recital 12, para 4)
  • Worked examples
  • Example 1—anti-suit injunction not permissible in support of arbitration
  • More...

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.

Impact of UK’s departure from the EU

Following exit day (ie 31 January 2020), the UK became a third state in respect of Regulation (EU) 1215/2012, Brussels I (recast).

As a result of transitional provisions in the Withdrawal Agreement between the UK and the EU, the UK remained subject to Regulation (EU) 1215/2012, Brussels I (recast) during the implementation period, which began on exit day and ended on IP completion day (ie 31 December 2020, at 11 pm).

The position post IP completion day requires consideration of the specific provisions of Regulation (EU) 1215/2012, Brussels I (recast) that can be applied in respect of third states, as well as of the ongoing application of relevant transitional provisions. For detailed guidance on the extent to which the regulation will, following IP completion day (ie 31 December 2020, at 11 pm), continue to be applied by the courts

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