The main points under the new Regulation are as follows:
- Regulation 1215/2012 restates the arbitration exception and confirms that proceedings relating to arbitration fall outside of its scope. As a result it clarifies that any court proceedings brought in order to support an arbitration (including enforcing or challenging an award and deciding the validity of an arbitration agreement) fall outside the scope of the Regulation, and hence a court which is not first seised can decide these matters, despite the risk of parallel judgments. If, for example, the agreement between the parties provides for London arbitration but one party commences court proceedings in Italy, and the Italian court then finds that there is no valid arbitration agreement and goes on to rule on the underlying merits of the case, that judgment must still be recognised and enforced by other EU courts. However, if the English court finds that the arbitration agreement is binding and the arbitrators eventually make an award, it is not currently clear whether the Italian judgment or the award will take precedence. Recital 12 of the Regulation suggests that the award might take priority, but does not expressly state this.
- The EU court named in an exclusive jurisdiction clause can hear the case, even if it is not the court first seised in the EU now. Other EU courts must stay their proceedings if the court named in the clause determines that it does have jurisdiction. The court named in the exclusive jurisdiction clause can hear the case even if the court first seised has not yet decided on a stay.
- A jurisdiction clause will fall within the scope of the Regulation even if neither party is domiciled in the chosen EU state or any other EU state. So, for example, if the English court is chosen to have jurisdiction, permission to serve out will not now be required even if neither party is domiciled in the EU (but if proceedings are ongoing in another EU country, permission will be required if the jurisdiction clause is not exclusive).
- The EU courts now have a discretion to stay their proceedings in favour of a non-EU court if the non-EU court was first seised. The non-EU court’s judgement must also be capable of recognition and enforcement in order for a stay to be granted.
In a separate development, Advocate General Wathelet has recently issued an Opinion in the case of “Gazprom” OAO. In it, he opined that the recast Regulation overturns the West Tankers decision (see Weekly Update 06/09) and that if the same facts were to arise again, the English court would be entitled to issue an anti-suit injunction, as such an injunction would not be incompatible with the recast Regulation (the Regulation itself is silent on this point). The opinion can be found below. The ECJ will not reach a decision in this case, though, until spring this year. Although the ECJ usually follows an Advocate General’s opinion, it is not obliged to do so and it remains to be seen whether the ECJ will adopt the same approach as Advocate General Wathelet.