Browsing by Author "Talonen, Paula"

The Brussels I Regulation ((EU) No 1215/2010) governs the division of jurisdiction between the Member States of the European Union and provides for the circulation of judgments within the Member States in civil and commercial matters. Arbitration is excluded from the scope of the Regulation, and the Regulation should not affect the application of the New York Convention in the Member States. The arbitration exclusion reflects a traditional understanding that the systems of international civil procedure and international arbitration are expected to function autonomously. Despite this, the two systems occasionally collide as parties to a dispute attempt to initiate parallel court and arbitral proceedings. Further, if parallel court and arbitral proceedings on the same matter and between the same parties cannot be prevented, they may result in two at least partially overlapping and conflicting decisions. This study concerns first whether parallel court and arbitral proceedings can be prevented in ways that are compatible with the Regulation and the New York Convention. The second research question concerns on which grounds a Member State court is able to refuse recognition and enforcement of a Brussels I regime judgment that conflicts with an arbitral award. The study is based on doctrinal research, and the objectives of the study are twofold. First, the study examines the prevailing interpretation of the Regulation’s interface with arbitration and secondly, the study aims at presenting a recommendation regarding the application of the Regulation in case a Member State court is requested to enforce a judgment conflicting with an arbitral award. Regarding the first research question, the study examines the availability of measures restricting or discouraging parallel court and arbitral proceedings. The prohibition of court-ordered anti-suit injunctions established in the case-law of the CJEU under the old Brussels I Regulation ((EC) No 44/2001) remains applicable under the recast Regulation. Further, the assessment of whether Member State courts are permitted to order damages for breach of arbitration agreement appears to give a negative answer as such damages are argued to be contrary to the principle of mutual trust between Member State courts. On the contrary, the recognition and enforcement of anti-suit injunctions ordered by arbitrators and arbitral awards ordering damages for breach of arbitration agreement appear to be outside the scope of the Regulation but national laws of the Member States strongly limit the availability and enforceability of such measures. This leads to a conclusion that parallel court and arbitral proceedings cannot be effectively prevented under the Regulation. As a main rule, the decision which is rendered first is to be recognised and enforced in other Member States on the application of a party regardless of any pending parallel proceedings. The Regulation particularly prescribes that it shall not affect the application of the New York Convention, which has led to a discussion concerning the possibility of anti-enforcement injunctions directed against the enforcement of a judgment that has been rendered prior to an arbitral award on the same matter and between the same parties. Such injunctions appear, however, both incompatible with the Regulation and unnecessary with regard to the unaffected application of the New York Convention. If a Brussels I regime judgment has been given first, it can be enforced in accordance with the Regulation. The same applies to an arbitral award under the New York Convention if the recognition and enforcement of the award is sought first. The Regulation does not address on which grounds a Member State court may refuse the enforcement of a Brussels I regime judgment in case the enforcement is requested only after a conflicting arbitral award is recognised and enforced in the Member State addressed. It appears clear that the enforcement must be refused in such situation but, on the other hand, the grounds for refusal of recognition and enforcement of a Brussels I regime judgment are exhaustively listed in the Regulation. The study discusses four alternative grounds for refusing the enforcement. It is concluded that the enforcement of a conflicting Brussels I regime judgment should be refused on the grounds of being contrary to the public policy in the Member State addressed since the national public policy cannot accommodate recognition and enforcement of two irreconcilable decisions.