CYIL vol. 12 (2021)
CYIL 12 (2021) Universal, Regional, and National Ways of Regulation of Jurisdiction … Similarly, the Hague Convention only applies to exclusive jurisdiction agreements. The Brussels Ibis Regulation, however, applies to exclusive as well as non-exclusive jurisdiction agreements. Contracting parties concluding a non-exclusive jurisdiction or arbitration agreement are therefore highly recommended to pay attention to potentially applicable legal regulation. Another difference between the three legal instruments relates to the universal application of the NY Convention which applies to arbitration agreements providing for arbitration in non-contracting states. The Brussels Ibis Regulation and the Hague Convention only apply to jurisdiction agreements referring to one or more courts of the contracting or member states. From this point of view, it may be more convenient to conclude an arbitration agreement as the NY Convention secures its enforceability almost all over the world. Contracting parties should, however, bear in mind that the applicability of the NY Convention is determined by the concept of arbitrability under national laws.The Brussels Ibis Regulation and the Hague Convention, on the other hand, specify that civil and commercial matters fall within the material scope of their application. Contracting parties are, therefore, advocated to review arbitrable matters in a potentially relevant national law. If the potentially relevant national law is rather hostile towards arbitration – meaning that arbitrable matters are limited – it may be more advantageous to conclude a jurisdiction agreement instead of an arbitration agreement. The NY Convention, Brussels Ibis Regulation, as well as the Hague Convention, aim to safeguard parties’ agreement regarding the dispute resolution process.Therefore, the three legal regulations oblige national courts to give effect to arbitration and jurisdiction agreements. The NY Convention itself does not regulate the process of recognizing arbitration agreements and referring parties to the arbitration and it must be governed by national law. The Brussels Ibis Regulation and the Hague Convention, on the other hand, regulate the process of giving effect to jurisdiction agreements. The regulation contained therein however, poses a risk of tactical litigation. Contracting parties are therefore advised to review the regulation of arbitration in potentially relevant national laws. A friendly attitude towards arbitration may cause that the conclusion of an arbitration agreement will be more advantageous, and vice versa. The author believes that the Hague Convention does not pose a threat to the regulation of international arbitration embodied in the NY Convention. In the author’s view, the NY Convention represents a more convenient legal regulation in comparison to the Hague Convention. Firstly, because of its universal applicability. Secondly, because no exceptions to the obligation of recognition of arbitration agreements and referral the parties to the arbitration are admitted. Thirdly, because the Hague Convention poses a risk of tactical litigation. To conclude, the NY Convention, Brussels Ibis Regulation, and the Hague Convention contain comparable regulation of jurisdiction and arbitration agreements. The main difference between the three legal regulations is that the Brussels Ibis Regulation and the Hague Convention contain autonomous regulation of jurisdiction agreements that cannot be modified by national laws. The legal regulation of arbitration agreements under the NY Convention, on the other hand, is not entirely regulated by this Convention which promotes the importance of national laws.
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