CYIL 2014

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 .

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