PRAVNI ZAPISI • Year I • No. 1 • pp. 74-96
THE ARBITRATION EXCEPTION AND PROTECTION OF ARBITRATION AGREEMENTS IN THE EU
Dr. Andrej Savin
Associate Professor, Copenhagen Business School
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Pravni zapisi, no. 1/2010, pp. 74-96
Original Scientific Article
KEY WORDS
Arbitration, Brussels I Regulation, civil jurisdiction.
ABSTRACT
Arbitral proceedings are excluded from the scope of Brussels I Regulation on the Recognition and Enforcement of Foreign Judicial Awards. This exception, a result of the fact that the 1958 New York Convention serves successfully as a primary instrument for the recognition and enforcement of arbitral awards, creates a number of difficulties both for arbitral tribunals and for regular courts.
The first part of this article looks at the exception from Article 1 (2) (d) of the Regulation through official commentaries and court cases of the European Court of Jus- tice. Although there is confirmation in the latter that arbitration is excluded, the in- consistencies and doubts about the article’s scope continue to put parties in doubt.
The second part analyzes some difficulties which arise out of Article 1 (2) (d) and which are encountered in practice. Among these are the problem of the arbitration agreement’s validity, the issues of interim measures and court assistance and the problem of recognition and enforcement of judgments made in violation of arbitration agreements.
The third part analyzes the recent initiatives for reforming the Regulation. Before all, a look is taken at the so-called Heidelberg Report which the European Commission ordered as a basis for its own Green Book on the changes and the Report that follows it. Attention is also drawn to other suggestions which look at arbitration exception.