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RECITAL 12 OF THE RECAST REGULATION: A NEW HOPE?

Published online by Cambridge University Press:  31 October 2013

Simon P Camilleri
Simon P Camilleri*
Affiliation:
Associate in Reed Smith LLPs Commercial Disputes Group, s.camilleri@reedsmith.com.
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Abstract

This article seeks to consider the EU's new approach to arbitration as set out in Recital 12 of the Brussels I Regulation (Recast). The article first considers the Court of Justice of the European Union's West Tankers decision and the foremost English authority applying that case (The Wadi Sudr) in order to provide some background to the problem which gave rise to Recital 12. Following this, the article goes on to consider whether Recital 12 does in fact act as a solution to the problem created by the West Tankers decision.

Keywords

arbitrationBrussels I Regulation (Recast)conflict of lawsEuropean lawprivate international lawWadi SudrWest Tankers
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 899 - 916
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)

2 Presse 483.

3 Indeed, this has been a key concern since the very beginning of the reform process: Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 21.04.2009, COM (2009) 174 final para 3.7.

4 It is interesting to note that the Commission clearly did not believe that a Recital was the answer to that question or, at the very least, a sufficient answer to that question. See, for example, art 29(4) of the Commission's Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), 14.12.2010, COM (2010) 748 final. However, it is also clear that the Commission's view on the matter went against those of the various Member States as set out in the earlier Heidelberg Report: Study JLS/C4/2005/03 Report on the Application of Regulations Brussels I in the Member States presented by Prof Dr Burkhard Hess, Prof Dr Thomas Pfeiffer and Prof Dr Peter Schlosser, September 2007 at paras 109–114 in particular. It is not the author's intention to dwell on this issue here though.

5 The key decision for present purposes being that of the Court of Justice of the European Union: C-185/07 Allianz SpA (formerly Rionione Adriatica di Sicurta SpA) v West Tankers Inc [2009] ECR I-663, (‘West Tankers’).

6 ibid.

7 National Navigation Co v Endesa Generacion SA (The Wadi Sudr) [2009] EWCA Civ 1397; [2010] 1 Lloyd's Rep 193, (‘The Wadi Sudr’).

8 West Tankers n 5.

9 Ibid.

10 West Tankers Inc v RS Riunione Adriatica di Sicurta SpA (The Front Comor) [2007] UKHL 4; [2007] 1 Lloyd's Rep 391.

11 West Tankers n 5, para 34.

12 ibid, para 23.

13 ibid, para 24.

14 ibid, paras 26–27.

15 ibid.

16 ibid, para 28.

17 C-351/89 Overseas Union Insurance Ltd and Deutsche Ruck UK Reinsurance Ltd and Pine Top Insurance Company Ltd v New Hampshire Insurance Company [1991] ECR I-3317.

18 C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693.

19 West Tankers n 5, para 29.

20 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels on 27 September 1968.

21 West Tankers n 5, para 30.

22 eg Blackaby, N et al. (eds), Redfern and Hunter on International Arbitration (OUP 2009)CrossRefGoogle Scholar para 5.137; Noussia, K, ‘Antisuit Injunctions and Arbitration Proceedings: What Does the Future Hold?’ (2009) 26 Journal of International Arbitration 311Google Scholar; Benedettelli, MV, ‘“Communitarization” of International Arbitration: A New Spectre Haunting Europe?’ (2011) 27(4) Arbitration International 582CrossRefGoogle Scholar.

23 West Tankers n 5.

24 ibid.

25 The Wadi Sudr n 7.

26 The Wadi Sudr n 7.

27 West Tankers n 5.

28 The Wadi Sudr n 7, paras 34 (per Waller LJ) and 119 (per Moore-Bick LJ).

29 ibid, paras 59 (per Waller LJ) and 118 (per Moore-Bick LJ).

30 ibid, paras 66 (per Waller LJ) and 131 (per Moore-Bick LJ).

31 West Tankers n 5.

32 ibid.

33 Chapter III of the Recast Regulation.

34 Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed at New York on 10 June 1958.

35 A point confirmed by Article 73(2) of the Recast Regulation.

36 C-185/07 Allianz SpA (formerly Rionione Adriatica di Sicurta SpA) v West Tankers Inc [2009] ECR I-663.

37 ibid.

38 ibid.

39 Although it seems somewhat clear that the European Parliament thought that it would be: European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI)) para M.

40 West Tankers n 5.

41 ibid.

42 Again, this seems to be the only way of reading the Parliament's views on the subject: European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI)), paras I to M and Draft Report on the proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), 28. 6.2011 COM (2010) 0748 Amendment 1 and accompanying Justification and point 4 of the Explanatory Statement.

43 West Tankers n 5.

44 ibid, para 29.

45 ibid, para 30.

46 See, for example, the decision of the Dusseldorf Regional Court of Appeal in Re the Enforcement of an English Anti-Suit Injunction Case 3 VA 11/95; [1997] I.L.Pr 73.

47 The Wadi Sudr n 7, paras 66 (per Waller LJ) and 131 (per Moore-Bick LJ).

48 Turner v Grovit and others [2001] UKHL 65; [2002] 1 WLR 107 paras 26 and 27 (per Lord Hobhouse).

49 Ellerman Lines, Limited v Read and Others [1928] 2 KB 144.

50 Turner v Grovit and others [2001] UKHL 65; [2002] 1 WLR 107.

51 Recast Regulation, Chapter III section 3.

52 The Wadi Sudr n 7, para 62.

53 ibid, paras 66 (per Waller LJ) and 131 (per Moore-Bick LJ).

54 ibid, para 118.

55 ibid, para 59.

56 Börner, A, ‘Article III’ in Kronke, H et al. (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer Law International 2010) 115–42Google Scholar.

57 D St Sutton, J, Gill, J and Gearing, M (eds), Russell on Arbitration (23rd edn, Sweet and Maxwell 2007)Google Scholar para 8-028; P Nacimiento, ‘Article V(1)(a)’ in Kronke et al (n 56) 205–30, section I.C.

58 If ‘inoperative’ is taken to mean ‘ceased to have effect’—see Blackaby et al (n 22) para 2.182.

59 Sutton, Gill and Gearing (n 57) para 8-022.

60 See, for example, the discussions and examples given in Blackaby et al (n 22) para 2.182 and in P Nacimiento, ‘Article V(1)(a)’ in Kronke et al (n 56) 205–30, section II.C(3)(d).

61 See, for example, the judgment of Gross J in Norsk Hydro ASA v State Property Fund of Ukraine and others [2002] EWHC 2120 (Comm); [2009] Bus LR 558 at para 17 where it is stated that ‘[t]here is an important policy interest, reflected in this country's treaty obligations, in ensuring the effective and speedy enforcement of such international arbitration awards’.

62 Such discretionary language not being present in all the official translations of the New York Convention—see the discussion in P Nacimiento, ‘Article V(1)(a)’ in Kronke et al (n 56) 205–30, section I.B.

63 Kanoria v Guinness [2006] EWCA Civ 222; [2006] 1 Lloyd's Rep 701; Svenska Petroleum Exploration AB v Government of the Republic of Lithuania, AB Geonafta [2005] EWHC 9 (Comm); [2005] 1 Lloyd's Rep 515; Dardana Ltd v Yukos Oil Co (No 1) [2002] EWCA Civ 543; [2003] 2 Lloyd's Rep 326.

64 D Otto and O Elwan, ‘Article V(2)’ in Kronke et al (n 56) 345–414, section III. However, see the contrary statement in Sutton, Gill and Gearing (n 57) para 8-044.

65 Annex to Resolution 2/2002 of the 70th Conference of the International Law Association held in New Delhi, India, 2–6 April 2002.

66 ibid, at 1.1(d).

67 Sutton, Gill and Gearing (n 57) para 8-016.

68 Bulfracht (Cyprus) Ltd v Boneset Shipping Company Limited MV Pamphilos [2002] EWHC 2292 (Comm); [2002] 2 Lloyd's Rep. 681.

69 Sutton, Gill and Gearing (n 57) para 8-101.

70 Weldon Plant Limited v The Commission for the New Towns [2000] EWHC Technology 76; [2001] 1 All ER (Comm) 264 para 30.

71 Lesotho Highlands Development Authority v Impregilo SpA and others [2005] UKHL 43; [2006] 1 AC 221.

72 An error is, in common parlance, usually understood to mean a mistake.

73 ICC Rules of Arbitration (2012), art 34(6); LCIA Arbitration Rules (1998), art 26,9.

74 LMAA Terms (2012); UNCITRAL Arbitration Rules (2010).

75 An important point that should be noted here is that English law does not reflect the majority view of arbitrating nations: there are many countries who follow the approach of the Model Law and do not permit an appeal on a point of law. For more on this point, see Blackaby et al (n 22) paras 10.64–10.67.

76 West Tankers n 5.

77 The Wadi Sudr n 7.

78 Commission's Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), 14.12.2010, COM (2010) 748 final.

79 West Tankers n 5.

80 Although the original view of the Commission was that this was a necessary requirement of any reform to Brussels I's approach to arbitration: Commission's Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), 14.12.2010, COM (2010) 748 final.

81 Although at the same time it seems fair to say that post-West Tankers, the author was not expecting a solution to the issue of arbitration devised by the EU to contain any great profundity.