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Brussels Regulation reform: Council adopts recast Brussels Regulation, retaining and clarifying arbitration exception
Practical Law UK Legal Update 1-522-9978 (Approx. 4 pages)
Brussels Regulation reform: Council adopts recast Brussels Regulation, retaining and clarifying arbitration exception
by PLC Arbitration
| Published on 12 Dec 2012 • European Union, International |
The Economic and Monetary Affairs Council adopted the revised text of the Brussels Regulation at first reading on 6 December 2012. The amendments include clarification of the extent of the arbitration exception in the Regulation.
Note: The recast Regulation was published in the Official Journal on 20 December 2012, see Legal update, Recast Brussels Regulation published in Official Journal.
On 6 December 2012, the Economic and Monetary Affairs Council adopted at first reading the recast of the Brussels Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (44/2001). This follows the endorsement of the recast Regulation by the European Parliament on 20 November 2012 (see Legal update, European Parliament adopts draft text of recast Brussels Regulation at first reading).
The highlights of the Regulation, as far as the treatment of the arbitration exception is concerned, are:
- The retention of the arbitration exception in article 1(2)(d) of the Regulation.
- The addition of a recital (recital 12) that clarifies the extent of the arbitration exception, including by:
- expressly preserving the right of member states' courts to rule on issues such as the validity of arbitration agreements;
- stating that a ruling of a member state court on the validity of an arbitration agreement should not be subject to the rules on recognition and enforcement of the Regulation;
- confirming that the New York Convention takes precedence over the Regulation and that, therefore, member states' courts may recognise and enforce arbitral awards even if they are inconsistent with a judgment of another member state court (for example, where a member state court has decided that the arbitration agreement is not valid and has gone on to give judgment on the merits); and
- clarifying that the Regulation does not apply to any action or ancillary proceedings relating to, in particular, the establishment of the tribunal, the arbitrators' powers, the conduct of the arbitration, nor any action or judgment concerning the review, appeal, recognition or enforcement of the award.
- A new article 84(1)(a), expressly stating that the Regulation shall not affect the application of the New York Convention.
The recast Regulation will be published in the Official Journal in the coming weeks and enter into force 20 days later. It will start applying two years after its entry into force.