This thesis examines the conceptual problems and practical issues that arise if a party commences proceedings under the Brussels I Regulation in another Member State in breach of an agreement that provides for arbitration in England. The focus is on the jurisdiction and powers of the English court when enforcing an arbitration agreement and the limits imposed by the Regulation's regime and underpinning principles regarding the relationship between Member State courts. Thus, the conflict between the English court and the foreign court is on the allocation of competence to decide upon the arbitration agreement's existence, validity and scope and on the jurisdiction of the court seised under the Regulation. The thesis examines this problem against the background of the legal framework that encompasses the international, national and EU level. In addition to this, this thesis is concerned with the role and competence of the arbitral tribunal for the decision on the arbitration agreement. Although the Regulation excludes 'arbitration' from its scope, the issue of the compatibility of the English courts' powers concerning foreign proceedings in breach of an arbitration agreement with the Regulation has recently seen significant development within the European Judicial Area. In particular the decision of the European Court of Justice in West Tankers that found the anti-suit injunction at variance with the Regulation has marked a turning point. This thesis undertakes a critical assessment of the court's reasoning in West Tankers and the repercussions for litigation and arbitration in England in its aftermath, in particular with regard to procedural and substantive alternatives to the anti-suit injunction. In its final part, the thesis addresses the envisaged reform of the Brussels I Regulation with regard to its interface with proceedings where the arbitration agreement is at issue. A critical assessment of the conflicting reform proposals against the background of the competing objectives of the Regulation's regime and international commercial arbitration is undertaken and an argument is made that the divergences in the choice of law rules on the arbitration agreement should be brought back into the spotlight and considered for a comprehensive solution.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:563096 |
| Date | January 2012 |
| Creators | Theisen, Ann-Catrin |
| Publisher | University of Nottingham |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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