Uncertainty ad infinitum: the inadequate clarification of the arbitration exclusion by the recast regulation

Abstract

Arbitration offers a real alternative to court litigation. As a result of globalisation, disputing parties are typically domiciled in different jurisdictions that have differing arbitral practices. Accordingly, to encourage the cross-border recognition and enforcement of foreign arbitral awards, the New York Convention was adopted in 1958 and is one of the most successful international conventions to date.

Even so, the effective resolution of disputes by way of arbitration is being threatened as questions are increasingly being raised as to whether a party agreed to arbitrate and/or whether the dispute in question is arbitrable. Consequently, parties who do not consider themselves bound by arbitration agreements or, more likely, abusive litigants, often seise a court with a view to obtaining a favourable judgment first. The race to a judgment or an award ensues. With no supranational regime to govern if or when a court or tribunal should stay their proceedings in favour of the other, conflicting judgments and awards inevitably result. What's more, as arbitration and litigation regimes have always been intended to be separate and independent, there is no supranational regime that provides guidance as to what factors a court should consider when evaluating whether a conflicting judgment or award should be enforced. This conundrum is left to national law, which does not give commercial parties the certainty they desire. The race to enforcement subsequently takes over.

This thesis aims to draw attention to these issues by evaluating the harmonised rules provided by the Brussels Regime for court jurisdiction and judgments and the interface of arbitration with that Regime. It will be seen that the mandatory rules governing recognition and enforcement of judgments leave little room for arbitral awards to be recognised. Case law spanning over four decades is examined and the inadequacy of national and European laws to combat the above problems is highlighted. There is currently a real risk of arbitral awards being rendered worthless unless national law is amended immediately. With Brexit on the horizon, will the UK Government and Parliament take the steps necessary to level the playing field for arbitration?

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Identifiers

ORCID for Johanna Hjalmarsson: orcid.org/0000-0002-7362-811X

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