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  • Series: Elgar Arbitration Law and Practice series x
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Louise Hauberg Wilhelmsen

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Louise Hauberg Wilhelmsen

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Louise Hauberg Wilhelmsen

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Louise Hauberg Wilhelmsen

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Louise Hauberg Wilhelmsen

In Chapter 1 the term ‘international commercial arbitration’ is introduced and the scene is set by introducing the Brussels I Regulation and the revision of this Regulation, focusing on the Heidelberg Report and the discussions concerning the interface between the Regulation and international commercial arbitration. The chapter also introduces the international, EU and national sources of law discussed in the book.

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Louise Hauberg Wilhelmsen

In Chapter 2 the interface between the recast Brussels I Regulation and international commercial arbitration is set out through an analysis of the arbitration exclusion in the Regulation. The chapter includes an examination of the CJEU’s decisions concerning the scope of the arbitration exclusion in the Regulation and the amendments made to the Regulation during its revision. The conclusion reached in this chapter is that there is an interface between the Regulation and international commercial arbitration because a dispute may be governed by the Regulation if the parties’ agreement to arbitrate is set aside for some reason and the court proceeds to rule on the merits of the dispute in a final judgment, which falls within the material scope of application of the Regulation.

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Louise Hauberg Wilhelmsen

In Chapter 3 the consequences of the interface between the recast Brussels I Regulation and international commercial arbitration are set out. The consequences are ascertained by first examining what the implications are of including judgments on the merits, that decide on the existence and validity of an arbitration agreement as an incidental question, within the scope of the Regulation. Secondly, the possible reactions by the party seeking to uphold an arbitration agreement to the inclusion of these judgments within the scope of the Regulation is discussed. Finally, it is concluded that the consequences of the interface are that the parties have an increased incentive to use dilatory tactics – i.e., forum shop and start parallel proceedings on the existence and validity of an arbitration agreement that may lead to conflicting decisions within the EU. These consequences are discussed in the light of the objectives of the EU judicial cooperation in civil matters.

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Louise Hauberg Wilhelmsen

In Chapters 4 and 5 the first of the consequences outline in Chapter 3 of the book – forum shopping – is examined. The chapters investigate whether EU, international and national laws of four EU Member States enable parties to forum shop. This question is examined by looking at which law applies to arbitration agreements’ existence and validity. Chapter 4 looks at arbitration agreements’ substantive and formal validity and the parties’ capacity to arbitrate. It is concluded that the international regulation does include a uniform rule on the formal validity of arbitration agreements, whereas no such uniformity is obtained in regard to the substantive validity of arbitration agreements or the parties’ capacity to arbitrate. Thus, rather than providing a solution to the issue of forum shopping, the EU, international and national regulations contribute to the parties’ incentive to forum shop, as different authorities may apply different laws to the substantive validity of arbitration agreements and the parties’ capacity to arbitrate.

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Louise Hauberg Wilhelmsen

In Chapters 4 and 5 the first of the consequences outline in Chapter 3 of the book – forum shopping – is examined. The chapters investigate whether EU, international and national laws of four EU Member States enable parties to forum shop. This question is examined by looking at which law applies to an arbitration agreement’s existence and validity under EU, international and national laws. In Chapter 5 the question of whether a dispute is arbitrable is examined. It is concluded that there is no uniform EU or international rule governing the arbitrability of a dispute. Also, national laws do not provide a uniform solution to the question. Thus, the EU, international and national regulations are found to contribute to the parties’ incentives to forum shop, as different authorities may apply different laws to the arbitrability of a dispute.

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Louise Hauberg Wilhelmsen

In Chapter 6 the second of the consequences identified in Chapter 3 – parallel proceedings – is examined. First, the question of which authority has the right to rule on an arbitral tribunal’s jurisdiction under EU, international and national laws is examined. The chapter also examines the issue of which authority has the right to rule first, if multiple authorities are seised of the question of an arbitral tribunal’s jurisdiction (lis pendens). The examination shows that parallel proceedings are enabled by national and international rules which provide a variety of possibilities for parties to refer the question of a tribunal’s jurisdiction to the arbitral tribunal, or directly or indirectly to national courts. Moreover, there is no lis pendens rule in the current regulations providing which authority should rule first if multiple authorities are seised of an action concerning the existence and validity of an arbitration agreement.