Edited by Peter Mankowski
Chapter 2: Arbitration and the twists of Recital 12 of the Brussels Ibis Regulation
The interface between arbitration and the Brussels I system was hotly disputed during the reform process, with reason. The West Tankers ruling of the European court of Justice had amply demonstrated the shortcomings of the exclusion of ‘arbitration’ from the substantive scope of the European instrument, under Article 1(2)(d) of the Brussels I Regulation. Both the academia and the case law grappled with the meaning and the consequences of the exclusion of arbitration, and the recast seemed a good occasion to clarify this matter. After much debate, however, the result appears to be somewhat disappointing: not only was the issue only addressed through a Recital and not an actual provision of the regulation, but also it is unclear whether this addition will actually bring about any crucial changes to the preexisting situation. The chapter seeks to ascertain what exactly has changed with Recital 12 with regard to the interface between arbitration and the Brussels I Regulation. This endeavor requires first to look back at the roots of Recital 12, both in the light of the West Tankers judgement and with regard to the debate and political choices made during the reform process. Against this backdrop, the input of Recital 12 is nuanced: on the one hand it reaffirms the consequence of the arbitration exclusion, which is a welcome step; on the other, it remains silent on many issues that have profound practical consequences.
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