Volume 6, Issue 1, June 2016 Juridical Tribune
Arbitration is a method of dispute resolution, which relies on private
parties rather than the system of state courts: the parties, thus, grant powers to a
number of individuals to decide a dispute between them, effectively setting aside
the power of the courts and the national procedures, in as much, however, as the
extent of the law permits
. Arbitration is a popular form of dispute resolution
particularly in the environment of business to resolve issues that arise of the
dealings in trade. The popularity and wide reliance on arbitration flows from a
number of advantages arbitration claims, such as it being less costly and much
speedier that court litigation (which, in fact, might not be the case: depending on
the subject of a dispute and the expertise arbitrators are required to possess to be
qualified to tend to it, the costs escalate, especially in areas like computer
technologies; besides, the necessity for court measures at different stages of
arbitration process is likely to undermine its arguably swift nature)
, as well as
conservatism of state justice and its degree of immobility
The paper explores the inevitable relationship between arbitration and
litigation and arbitration’s place within the European legislative framework.
Particularly, it addresses the question of why the Brussels regime, which regulates
matters of transnational litigation in the EU, has consistently excluded arbitration
from under its scope. Besides the prima facie exclusion of arbitration and its
rationale, the concerns raised by the extent of the exclusion are addressed as well.
That is, whether the complementary to arbitration questions such as the validity of
an arbitration agreement and formation of an arbitration tribunal, among others, are
similarly excluded from the scope of the Brussels regime. The paper commences
with introductory comment and continues by outlining the nature of arbitration and
its distinctive features in Part II. Part III gives a detailed overview of the instances
of court involvement in the arbitration process, which often dictates the choice of
forum. Part IV discusses elaborates on the rationale for the exclusion of arbitration
from the Brussels regime. Finally, Part V concludes with an inquiry of whether the
confusion generated by the exclusion has been eliminated with the entry into force
of the Recast Brussels Regulation and whether a separate instrument regulating
arbitration in Europe is desired.
2 International arbitration: nature and key characteristics
2.1 Key features of international arbitration
The need to define the notion of international commercial arbitration was
not urgently felt until the adoption of the UNCITRAL Model Law on International
in 1985, which, although not legally binding, was meant
Palacean, C 2009, ‘Forms of arbitration in international trade’, Law Anna ls Titu Maiorescu
University, vol. 7, pp. 117 – 128.
Carr, I & Stone, P 2014, International Trade Law, 5th edn, Routledge, UK.
Palacean, C op. cit., p. 117.
UNCITRAL Model Law on International Commercial Arbitration (1958) with amendments as
adopted in 2006, available at the United Nations Commission on International Trade Law web-