Arbitration and its fitting within the Brussels System: state of the art and prospects for the reform of the Brussels I bis Regulation

Abstract

The relationship between arbitration and European Union law has not historically been easy. While tension currently focuses on the alleged unsuitability of arbitration for resolving disputes involving elements of European public law (antitrust, investment, sports law), the issue that has generated the most controversy over the last decades has been the scope of the exclusion of arbitration from the Brussels Convention and the EU Brussels Regulations. The evolution of the CJEU’s case-law has shown how the initial conception of the exclusion of arbitration from the so-called Brussels System (which omitted any interrelation between arbitration and jurisdiction) has been overtaken by reality. Ten years after the entry into force of the Brussels I bis Regulation, the question of the relationship between arbitration and jurisdiction within the Brussels System, still unresolved, is likely to be reopened during its forthcoming review. The purpose of this article is to uncover the origins of the problem, focusing on the specificities of arbitration in Europe, and to elaborate on potential amendments that may be the subject of debate in the upcoming reform process of the Brussels I bis Regulation, with the aim of achieving a more harmonious integration of arbitration within the EU.