Court confirms arbitration falls outside of both Regulation 44/2001 and its replacement

The claimant, a party to arbitral proceedings, applied  pursuant to section 32 of the Arbitration  Act 1996, seeking the court’s determination of the substantive jurisdiction of the tribunal. The  same issue is also currently before the Italian courts (that action having been brought by the  defendant, which refused to participate in the arbitration). The defendant alleged that it was not  a party to any arbitration agreement.

Although the Italian courts were first seised, Cooke J confirmed that the English courts (and the  arbitral tribunal) could also consider the same issue because arbitration is excluded from  Regulation 44/2001. Although Regulation 44/2001 is going to be replaced by Regulation 1215/2012 in  January 2015, the position will be no different on this point after then. Instead, the arbitration  exclusion is going to be more fully explained in the new Regulation and “although it is not yet in  force, it was suggested that some might regard the new Regulation as declaratory of the existing  state of law”.

COMMENT: As previously reported, 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. That position has been confirmed in this case.