Arbitration and the courts : an analysis of the relationship in the light of Brussels I regulation

Abstract

In the last few years, a major concern for arbitration centres in Europe has been the effects of Regulation 44/2001 on the interplay between arbitration and the courts. While arbitration has its roots in contract, the courts still play an important role in arbitration proceedings. It is important, however, that one does not impinge on the other unnecessarily and abusively. This is the crux of the matter which has reached its culmination in the current discussions on the proposed amendments to Regulation 44/2001 to cater for the perceived irregularities in decisions yielded by the courts. These reforms also come in the wake of the ongoing West Tankers judgement which has exposed some of the deficiencies in the European legal framework dealing with arbitration. This thesis analyses the effect of excluding arbitration from the scope of the Brussels I Regulation and how this has been applied and interpreted by judges and scholars. The arbitration exclusion has had significant implications for arbitration in Europe and even beyond, and therefore the arbitration community must endeavor to rectify these gaps and inadequacies. This thesis argues that the best way forward is the application of the New York Convention in arbitral matters and more importance to drafting. The freedom to arbitrate is a universal value and therefore the refusal of arbitration would mean a rejection of all attempts to secure justice in the private sector. Businesses need to be confident that the arbitration industry in Europe is reliable and that arbitration is an efficient way to settle any disputes which may arise.