403 / 532
387
AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
Convention dated 1987,
93
rule out their own application in arbitration and arbitral
proceedings. This came as no surprise in view of the fact that “due to the ‘dual’ nature
of the Brussels Convention and of the Regulation, the exclusion of ‘arbitration’ from
their scope concerns both jurisdiction and recognition and enforcement of foreign
judgments”.
94
Whereas at the time of the adoption of the Convention the exclusion
did not muddy the silent arbitration waters, one of the ancillary effects of the exuberant
rise of arbitration, and particularly investment arbitration, is the fact that the exclusion
topic has led in the past years to heated discussion and studies encompassing the
question of the nature of the exclusion of arbitration and its application.
All of these factors may explain the attention that was drawn to the CJ Ewhen
adjudicating arbitration related questions concerning the conundrum imposed by
the existence of exclusion. The fact that arbitration has been excluded in its entirety
was affirmed by the Court in the
Marc Rich
95
decision. The idea here was that, in
order to successfully determine whether a dispute falls within or outside the scope
of the Convention, references have to be made exclusively and solely to the subject
matter of the dispute at hand. Hence, if the Convention required the exclusion of
arbitration related proceedings, then, as an effect of this elimination, proceedings
held before national courts concerning arbitration issues (i.e. appointment of a
tribunal, provisional measures, and preliminary questions concerning the validity of
the agreement to arbitrate) are designated as falling
per se
under the exclusion.
As many authors point out, “preventing the ‘torpedoing’ of international arbitration
should be supported”.
96
In the
Turner
decision
97
the Court held that anti-suit injunctions
have to be regarded as incompatible with the Regulation even when the party is
mala
fides
and has the intention of using the “torpedo” in order to deflate the pending
proceedings. Looking at an anti-suit injunction from the EU point of view, which takes
as its premise the recognition of the judicial bodies active in other Member States, it
was found that such actions could bring in to being such effects as the weakening of a
foreign court’s jurisdiction to adjudicate a dispute, not only from a national perspective
but predominantly from the jurisdictional angle expressed in the Regulation.
98
When the dispute commonly known under the denomination
West Tankers
reached the Court, it became one of those highly anticipated decisions which it was
hoped would bring much needed clarification to the whole matter of the exclusion of
93
Convention on the jurisdiction and the enforcement of judgements in civil and commercial matters.
94
G. Carducci,
supra
note 38, p. 176.
95
Judgment of the Court of 25 July 1991, Marc Rich & Co. AG v Società Italiana Impianti PA., Case
C-190/89, ECR-I-03855.
96
G. Carducci,
supra
note 38, p. 178.
97
Turner, supra
note 89, para. 27.
98
Ibid
, paras. 24-29
.