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

Uncertainty ad infinitum: the inadequate clarification of the arbitration exclusion by the recast regulation
Uncertainty ad infinitum: the inadequate clarification of the arbitration exclusion by the recast regulation
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?
University of Southampton
Lavelle, Jennifer
aa8c8ed9-be80-4dab-a550-7b53fdcc0fd6
Lavelle, Jennifer
aa8c8ed9-be80-4dab-a550-7b53fdcc0fd6
Hjalmarsson, Johanna
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Lavelle, Jennifer (2018) Uncertainty ad infinitum: the inadequate clarification of the arbitration exclusion by the recast regulation. University of Southampton, Doctoral Thesis, 317pp.

Record type: Thesis (Doctoral)

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?

Text
PhD final 23.11.18 - Version of Record
Available under License University of Southampton Thesis Licence.
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More information

Published date: May 2018

Identifiers

Local EPrints ID: 427146
URI: http://eprints.soton.ac.uk/id/eprint/427146
PURE UUID: 3160fdd9-82b7-4a7c-9b9f-62e7e9e30a87
ORCID for Johanna Hjalmarsson: ORCID iD orcid.org/0000-0002-7362-811X

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Date deposited: 03 Jan 2019 17:30
Last modified: 10 Dec 2020 05:01

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