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Browsing by Author "Genberg, Jonna Heidi Elisabeth"

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  • Genberg, Jonna Heidi Elisabeth (2014)
    Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) has been considered the most important legal document in the area of civil procedure on EU level. Article 1(2)(d) of the Regulation excludes arbitration from the scope of application of the Brussels I Regulation. However, the ECJ interpreted the arbitration exclusion narrowly in Case C-185/07 Allianz SpA & Generali Assicurazioni Generali SpA v. West Tankers Inc. (2009) ECR I-663. In practice, this preliminary ruling watered down the arbitration exclusion in the Regulation, and thereby caused an intensive debate on the influence of EU legislation on international arbitration. Case law of the ECJ has shown that the scope of application of the Regulation and the arbitration exclusion in it depends on the substantive subject matter of the dispute in question. If that subject matter falls within the scope of the Regulation, a court which has jurisdiction under the Regulation is entitled to examine whether the arbitration exception applies and, depending on its assessment of the validity of the arbitration agreement, to refer the case to the arbitral body or adjudicate the matter itself. The revised Regulation (EU) No 1215/2012 becomes applicable on matters issued as of 10 January 2015. The result of the revision is that the arbitration exclusion remains unchanged, however with an added recital (12) in the preamble. This has left the arbitration audience and legal scholars somewhat confused concerning the reasons for keeping the arbitration exclusion unaltered in the revised Regulation. This thesis examines the factors that have led to the current legal situation in the area of EU civil procedure, in particular concerning arbitration. It also provides an analysis of what the revision of the Regulation signifies in practice. Lastly, it contemplates what the standpoint of the CJEU potentially will be in future arbitration proceedings in the light of i.e. West Tankers and based on the revised Regulation. The revised Regulation introduces some key changes originally aiming to make the recognition and enforcement of judgments given by the Member States’ courts easier and more effective. However, contrary to the arbitration community’s expectations, the Regulation has not fully clarified the interface between the Regulation and arbitration. The added recital only provides assistance to some extent, and it seems that we stand before a revision that chose status quo instead of presenting any revolutionary renovations to the arbitration exclusion.