The treatment of international commercial arbitration in the EU judicial area has been intensely debated, particularly in relation to the scope of the arbitration exclusion contained in the 'Brussels I Regime,' the three EU Brussels instruments on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The original Brussels Convention was replaced by the Brussels I Regulation, which was in turn replaced by the Brussels I Recast, the current EU legislative framework on jurisdiction. Arbitration was excluded from the scope of the Brussels Convention by virtue of Art 1(4), and the same arbitration exclusion is retained in Art 1(2)(d) of the Brussels I Regulation and the Brussels I Recast. Yet, the interaction of commercial arbitration with the Brussels I Regime in the EU remains controversial despite the arbitration exclusion. The controversy is largely based on the unregulated interface between commercial arbitration and the Brussels I Regime, which is created by the fact that neither the Brussels I Regime nor the New York Convention provide mechanisms to properly address the situation in which matters that are ordinarily addressed in international commercial arbitration may also fall within the material scope of the Brussels I Regime. It follows that international commercial arbitration based on the New York Convention and international commercial litigation based on the Brussels I Regime may interact in the process of the arbitral tribunals and courts of Member States exercising jurisdiction in civil and commercial matters, as both instruments in any such interaction each require respect and obedience, but do not otherwise regulate their potential conflict, this can lead to an undesirable degree of uncertainty between the two regimes. The Brussels I Recast contains a new Recital 12 that provides greater clarity in relation to the scope of the arbitration exclusion in Art 1(2)(d). However, the Recital does not entirely resolve all the questions concerning the arbitration/litigation interface. Therefore, in view of the remaining problems which the Brussels I Recast did not specifically address, it is suggested in this thesis that: (1) the wording of the Treaties relating to the exclusive external competence of the EU should be made clearer; (2) specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation at the request of the arbitral tribunal should be included in the future revision of the Brussels I Regime. The proposed solution would not undermine the operation of the New York Convention; neither would it create exclusive external competence of the EU in aspects of international commercial arbitration, which is the main political concern of some Member States with regard to partially including arbitration within the scope of the Brussels I Regime.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:715436 |
| Date | January 2016 |
| Creators | Ojiegbe, Chukwudi Paschal |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=231752 |
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