A. Reports on the Brussels Convention

Conventions between the EU Member States on matters within the scope of Union jurisdiction are usually accompanied by an official report explaining the meaning of the convention. These reports are taken into account by the Court of Justice of the European Union (CJEU) when interpreting the convention. The report on the original version of the Brussels Convention was the Jenard Report.Footnote ⁵ This states, first, that the Brussels Convention does not apply to the recognition of arbitration awards;Footnote ⁶ secondly, that it does not apply for the purpose of determining the jurisdiction of courts in respect of litigation relating to arbitration—for example, proceedings to set aside an arbitral award; and, finally, that it does not apply to the recognition of judgments given in such proceedings.Footnote ⁷ This makes clear that the exclusion is not limited to proceedings before arbitrators but also covers court proceedings relating to arbitration.

When the United Kingdom joined the Convention, there was a report by Professor Schlosser on the Convention of Accession.Footnote ⁸ This deals with arbitration in somewhat greater detail.Footnote ⁹ According to Professor Schlosser, two divergent points of view were expressed in the negotiations. The view put forward by the United Kingdom was that the exclusion covers court proceedings concerning any dispute which the parties agreed would be settled by arbitration; the original Member States, on the other hand, maintained that the exclusion covers court proceedings only if they relate to arbitration proceedings.Footnote ¹⁰ This latter view seems to coincide with that expressed in the Jenard Report. The Schlosser Report does not say which view is correct, though it notes that it was decided not to amend the text of the Convention.Footnote ¹¹ This divergence of opinion would make a difference in practice only where different courts take different views as to the validity or applicability of an arbitration agreement: if they both consider it valid and applicable, they would agree that the dispute should be settled by arbitration. In this case, the only court proceedings would be proceedings which, on any view, would be excluded from the scope of the Convention.

Professor Schlosser then proceeds to discuss what he calls ‘other proceedings connected with arbitration before national courts’.Footnote ¹² What he says here is in fact a more detailed statement of the view expressed in the Jenard Report. This was presumably intended to make clear what, in the opinion of all the Member States, was excluded, while leaving open the questions which were controversial.

In these paragraphs, he first says that the Convention in no way restricts the freedom of parties to submit disputes to arbitration.Footnote ¹³ This applies, he says, even to those matters with regard to which the Convention lays down rules of exclusive jurisdiction.Footnote ¹⁴ On the other hand, he says, this does not prevent national legislation from invalidating arbitration agreements affecting such matters.

He next says (as does Jenard) that the Convention does not cover court proceedings ancillary to arbitration proceedings. He gives the following examples:

• • the appointment or dismissal of arbitrators;

• • the fixing of the place of arbitration;

• • the extension of the time limit for making awards; or

• • the obtaining of preliminary rulings on questions of substantive law.

He goes on to say that the Convention also does not apply to court proceedings to determine the validity of an arbitration agreement or, when it is found to be invalid, an order by the court that the parties must not continue the arbitration proceedings.Footnote ¹⁵

In his final paragraph on the matter,Footnote ¹⁶ Professor Schlosser says that the Convention does not apply to court proceedings concerning the revocation, amendment, recognition or enforcement of awards, nor does it apply to judgments incorporating awards. He then adds the following sentence:Footnote ¹⁷

This seems to mean that a judgment given after the revocation of the award must be recognized and enforced under the Convention, even if the courts of the Contracting State in which recognition is sought would regard the award (and the arbitration agreement on which it was based) as valid. Since the decision revoking the award (or any decision on the validity of the arbitration agreement) is, in Schlosser's view, outside the scope of the Convention,Footnote ¹⁸ courts in other Contracting States are entitled to form their own view on the matter: they are not bound by a decision of a court in another Contracting State. This sentence in the Report seems, therefore, to be inconsistent with the British view that the Convention does not apply to court proceedings regarding a dispute which, in the eyes of courts of other Contracting States, is covered by an arbitration agreement.

Reading between the lines, one can perhaps discern the solution supported by the Report: first, the Convention does not apply to a ruling on the validity or applicability of an arbitration agreement; secondly, it does not apply to a decision referring the parties to arbitration or a decision refusing to do so; thirdly, it does not apply to a decision to hear a case despite a claim by one of the parties that it is subject to arbitration. Court proceedings are not, however, excluded from the scope of the Convention merely because, in the view of other courts, they are covered by an arbitration agreement. If a judgment is given in such proceedings, it must be recognized and enforced by courts in other Member States. The recognition and enforcement of arbitration awards, on the other hand, is not covered by the Brussels Convention.

The effect of this is that if there is an agreement providing for arbitration in one Member State (the ‘seat’) and court proceedings are brought in another Member State (the ‘forum’), a ruling on the validity (or applicability) of the arbitration agreement by the courts of the seat will not be binding under the Convention on the courts of the forum: they will not be precluded from hearing the case. On the other hand, a similar ruling by the courts of the forum would not be binding under the Convention on the courts of the seat. Recognition of a judgment on the substance given by the courts of the forum would be covered by the Convention, but the Convention would not apply to the recognition of the award, even if it was incorporated into a judgment.

B. The Marc Rich Case

The Schlosser Report was published in 1979. More than ten years were to pass before these matters first came before the CJEU. This was in Marc Rich and Co. v. Società Italiana Impianti,Footnote ¹⁹ which concerned a contract for the sale of crude oil, in which the buyer was a Swiss company (Marc Rich) and the seller an Italian company (Impianti). Marc Rich had made an offer to buy the oil and this was accepted by Impianti, subject to additional terms, which were accepted by Marc Rich. Subsequently, Marc Rich sent a telex to Impianti adding an English choice-of-law clause and an English arbitration clause. There was no reply. The oil was shipped, but Marc Rich claimed contamination. Impianti then brought proceedings before a court in Genoa, Italy, for a declaration of non-liability. It argued that the arbitration clause was not part of the contract.

Marc Rich responded by taking steps to commence arbitration proceedings in London. Impianti refused to appoint its arbitrator; so Marc Rich made an application for the High Court to appoint an arbitrator on Impianti's behalf. Impianti claimed that since the Italian court had been seised prior to the English court, the latter was required to stay its proceedings under the lis pendens provision of the Convention.Footnote ²⁰ This states that where proceedings involving the same cause of action and between the same parties are brought before the courts of different Contracting States, any court other than the court first seised must, of its own motion, stay the proceedings before it.Footnote ²¹ Impianti argued that this provision was applicable because the same question—the validity of the arbitration clause—was in issue in both sets of proceedings.

The English Court of Appeal made a reference to the CJEU, which ruled that the proceedings before the English courts, being ancillary to arbitration proceedings, were outside the scope of the Convention.Footnote ²² This was not affected by the fact that the validity of the arbitration agreement was in issue in both sets of proceedings. The CJEU said:Footnote ²³

The result was that the English proceedings were not barred by the lis pendens rule.

The importance of this case lies in the fact that it establishes, as stated in the Jenard and Schlosser Reports, that court proceedings ancillary to arbitration proceedings are outside the scope of the Convention.

The case also establishes that, in determining whether a matter falls within the scope of the Convention, regard must be had solely to the subject-matter (‘objet’, in French) of the proceedings, not to any incidental question raised by either of the parties.Footnote ²⁴ If the objet of the proceedings is outside the scope of the Convention, the proceedings are not brought within its scope just because an incidental issue relates to a matter within its scope.Footnote ²⁵ As we shall see, this rule has been applied in later cases. As we shall also see, however, it is subject to an important qualification.

The proceedings before the CJEU took over two years.Footnote ²⁶ During this period, the Italian proceedings were moving forward. Marc Rich filed an objection to the jurisdiction of the Genoa court: it argued that the arbitration clause was part of the contract. This issue was taken on appeal to the highest court in Italy, the Corte di Cassazione, which held that the arbitration clause was not part of the contract. This ruling was given approximately six months before the CJEU delivered its judgment. The case then recommenced before the Genoa court. Marc Rich could have walked away from the proceedings; instead, it decided to contest the claim on the substance by lodging pleadings with the Genoa court in May 1991.

When the English proceedings began again after the judgment of the CJEU, Marc Rich asked the High Court in London to issue an antisuit injunction precluding Impianti from taking further steps in the Italian proceedings. This was refused by Hobhouse J on the ground that, by pleading to the merits of the claim before the court in Genoa in May 1991, Marc Rich had submitted to its jurisdiction.Footnote ²⁷ This was affirmed by the Court of Appeal, which held that the submission also applied to the ruling by the Corte di Cassazione that the arbitration clause was not part of the contract; consequently, Marc Rich was precluded from contesting this point in England.Footnote ²⁸ This destroyed the basis of Marc Rich's claim that the English court should appoint an arbitrator on Impianti's behalf.

It is unclear whether the decision of the Court of Appeal was based on the Brussels Convention or on issue estoppel under English law.Footnote ²⁹ As will be seen below, there can be no doubt today that a ruling on the validity or applicability of an arbitration agreement is not subject to recognition under the Brussels Regulation; the same was almost certainly true under the Brussels Convention. So the Court of Appeal's judgment was not justified under the Convention; but could it be justified under English law? Although the Convention did not require recognition, it did not preclude it. This is shown by Bavaria Fluggesellschaft Schwabe v Eurocontrol,Footnote ³⁰ in which the CJEU held that, though a judgment from another Member State which was outside the scope of the Convention was not subject to recognition under the Convention, the Convention did not preclude its recognition under an international agreement between the Member States in question. There is no reason why the same should not apply to recognition under Member-State law.

However, if a ruling is to be recognized in England on this basis, all issues must be decided under English law, including the jurisdiction of the court of origin: the Regulation has no role to play. This requires consideration of section 32(1) of the Civil Jurisdiction and Judgments Act 1982,Footnote ³¹ a provision which does not apply where recognition is required under the Brussels Regulation.Footnote ³² Under section 32(1)(a) of the Act, a foreign judgment will not be recognized in the United Kingdom if the bringing of the foreign proceedings was contrary to an arbitration agreement. However, section 32(1)(a) does not apply where the person against whom the judgment was given submitted to the jurisdiction of the foreign court,Footnote ³³ though, under section 33 of the Act, he is not be treated as having submitted simply because he contested the jurisdiction of the court, or asked the court to stay the proceedings on the ground that the dispute was subject to an arbitration agreement.Footnote ³⁴ He would, however, be regarded as having submitted if he pleaded to the merits. This, it will be remembered, is what Marc Rich did in the proceedings before the Genoa court.

C. Asset-Freezing Orders

Does the Regulation apply to asset-freezing orders granted in aid of arbitration? It might be thought that they were ancillary to arbitration and consequently outside the scope of the Regulation. However, they are not quite the same as orders for the appointment of an arbitrator or the other examples given by Schlosser. The latter are part of the arbitration process and the law applicable might reasonably be regarded as part of the law of arbitration. Preliminary measures in support of arbitration are different. Although their function in a given case might be to support arbitration, they can equally well be used to support claims subject to litigation. The applicable law is not part of the law of arbitration: they are independent measures. This is what the CJEU held in Van Uden v Deco-Line,Footnote ³⁵ a case concerning an interim-payment order,Footnote ³⁶ granted as a provisional measure by a Dutch court in support of arbitration. While accepting that court proceedings ancillary to arbitration are outside the scope of the Convention, the CJEU held that the question whether a preliminary measure in support of arbitration falls within the scope of the Convention depends, not on the nature of the measure, but on the nature of the rights it protects.Footnote ³⁷ The CJEU said that if the subject-matter (objet) of the substantive claim falls within the scope of the Convention, the Convention is applicable to provisional measures granted in support of it, even if the claim is subject to arbitration. Since the claim before the Dutch arbitrators was for breach of contract, the interim-payment order was covered.

This does not mean that provisional measures cannot be granted in aid of arbitration; however, where the defendant is domiciled in another Member State, they must be permitted by the Regulation. The relevant provision today is Article 31 of Brussels 2000 (Article 24 of the Convention),Footnote ³⁸ which allows a court without jurisdiction over the substance of a case to grant such provisional, including protective, measures as may be available under its national law. In Van Uden, the CJEU said that where the case is subject to arbitration, the courts of no Member State have jurisdiction over the substance; so resort must always be had to this provision. Therefore, asset-freezing orders in aid of arbitration may be granted against a party domiciled in another Member State only in terms of Article 31. Under this, they must be restricted to property within the territory of the Member State in which they are made: worldwide orders are not allowed.Footnote ³⁹

A. Turner v Grovit

The first case in which antisuit injunctions were considered by the CJEU was Turner v Grovit, a case which did not involve arbitration.Footnote ⁴⁰ The basic facts were that an English employee of a company incorporated in Ireland but with its central management in England brought proceedings against the company in England for constructive wrongful dismissal. The constructive dismissal had taken place in Spain, where he had been working temporarily in the office of an associated Spanish company, while still an employee of the English company. After final judgment (in favour of the employee) had been given in the English proceedings, the Spanish company brought proceedings against the employee in Spain. These proceedings were an attempt to relitigate the issues already decided in England.Footnote ⁴¹ The English Court of Appeal granted an antisuit injunction. The House of Lords made a reference to the CJEU, which held that such injunctions may not be granted to restrain proceedings in another EU State. The UK Government argued that they should at least be permitted in the case of proceedings brought in bad faith, but this was rejected by the CJEU.Footnote ⁴²

The CJEU reached this conclusion as follows: first, it said that the jurisdictional provisions of the Convention may be interpreted with equal authority by the courts of each Contracting State;Footnote ⁴³ then it stated that, except in a small number of exceptional cases, the Convention does not permit the jurisdiction of a court in one Member State to be reviewed by a court in another Member State.Footnote ⁴⁴ It concluded:Footnote ⁴⁵

From this, it will be seen that the objection to antisuit injunctions is that they permit the courts of one Contracting State to impose their views on the courts of another Contracting State regarding the right of the latter to hear a case. They do this by supporting the injunction with the threat of contempt proceedings, which could result in the party concerned being fined, having his assets sequestrated or even being put in prison. As a result, the court in which the foreign proceedings are pending never has the opportunity to decide the matter for itself.

B. West Tankers

Turner v Grovit establishes that the Brussels Regulation prohibits antisuit injunctions directed against proceedings in other EU States. However, that prohibition can apply only within the scope of the Regulation.Footnote ⁴⁶ We therefore come back to the question considered previously: what is the scope of the Regulation with regard to arbitration?

The leading case on this question (with regard to antisuit injunctions) is West Tankers.Footnote ⁴⁷ The case arose when a ship belonging to West Tankers hit a jetty in Syracuse, Italy, causing considerable damage. The jetty was owned by Erg, an Italian company. Erg claimed against its insurance company, Allianz, for the damage to the jetty. Allianz compensated Erg up to the limit of the coverage under the policy. Erg then claimed against West Tankers for the remainder of the loss. Since the ship had been on charter to Erg at the time of the accident, and since the charter party contained an English arbitration clause, Erg began arbitration proceedings against West Tankers in London.

However, because Allianz had partly indemnified Erg, Allianz was subrogated to Erg's rights against West Tankers to the extent to which it (Allianz) had paid Erg.Footnote ⁴⁸ Allianz brought proceedings against West Tankers before a court in Syracuse to recover this amount. It claimed that the court had jurisdiction to hear the case under Article 5(3) of Brussels 2000 (the relevant provision at the time). This confers jurisdiction, with regard to a claim in tort, on the courts for the place where the ‘harmful event’ occurred. The harmful event had occurred in Syracuse, where the jetty was located.

West Tankers took the view that, since Allianz's right to bring the claim derived from Erg, the claim was subject to the same conditions as applied between it (West Tankers) and Erg. As the arbitration agreement undoubtedly applied as between West Tankers and Erg, West Tankers considered that it also applied as between it (West Tankers) and Allianz. So it contested the jurisdiction of the court in Syracuse; it also brought proceedings before the High Court in London for a declaration that the arbitration agreement covered the claim, and for an antisuit injunction restraining Allianz from pursuing the claim before the court in Syracuse. These were granted by the High Court. Allianz appealed, and the House of Lords made a reference to the CJEU to ascertain whether the prohibition against antisuit injunctions applied when the injunction was granted on the ground that the foreign proceedings were contrary to an arbitration agreement.

This raised the question whether the arbitration exclusion insulated the antisuit injunction from the effects of the rule in Turner v Grovit. The argument in favour of this view was that the proceedings in which the injunction was granted were outside the scope of the Regulation. The CJEU agreed that they were;Footnote ⁴⁹ nevertheless, it ruled that the prohibition against antisuit injunctions still applied. After stating that the proceedings in which the antisuit injunction was granted did not come within the scope of the Regulation, the CJEU continued:

This judgment thus lays down the rule that, in order to determine whether the prohibition against antisuit injunctions applies in a given case, one must consider, not whether the proceedings in which the injunction was granted fall within the scope of the Regulation, but whether the proceedings against which the injunction is directed fall within its scope. These were the proceedings in Syracuse.

In order to determine whether the proceedings in Syracuse were within the scope of the Regulation, the CJEU applied the principle, laid down in Marc Rich v Impianti (above), that one must look to the subject-matter (‘objet’) of those proceedings. The ‘objet’ of the Syracuse proceedings was a claim for damages. This came within the scope of the Regulation; consequently, the preliminary question before the court in Syracuse—the validity and scope of the arbitration clause—also came within the scope of the Regulation.Footnote ⁵¹ If the ‘objet’ of the proceedings falls within the scope of the Regulation, all ancillary questions to be decided in the course of those proceedings also fall within its scope. Consequently, the English courts had no right to grant the injunction.

Although this decision met with a hostile reception in England,Footnote ⁵² it is not lacking in legal logic. The reason court proceedings ancillary to arbitration are normally excluded from the scope of the Regulation is that they relate more to arbitration than to civil (court) proceedings, the subject-matter of the Regulation. In the case of an antisuit injunction, however, the position is different. Although the injunction affects arbitration—it protects it from interference—it has an even greater effect on the proceedings against which it is directed, since, if the injunction is obeyed, those proceedings will be stopped in their tracks. For this reason, it makes sense to say that the prohibition against antisuit injunctions applies whenever the proceedings against which the injunction is directed are within the scope of the Regulation.Footnote ⁵³

A. The New York Convention

The exclusion of arbitration was retained in Brussels 2012 without alteration. The only new provision of a substantive nature was Article 73(2), which provides that the Brussels I Regulation does not affect the application of the 1958 New York Convention.

In Brussels 2000, there is no provision referring expressly to the New York Convention; however, Article 71(1)Footnote ⁶² might be regarded as having the same effect. This provides:

The New York Convention applies with regard to a particular matter: arbitration. It could govern the jurisdiction of courts because it provides that when a court of a Contracting State is seised of an action in respect of which the parties have concluded an arbitration agreement, the court must, at the request of one of the parties, refer the parties to arbitration (unless the arbitration agreement is null and void, inoperative or incapable of being performed).Footnote ⁶³ It could also affect the recognition or enforcement of judgments. It requires an arbitral award to be recognized and enforced (subject to exceptions).Footnote ⁶⁴ If the award is irreconcilable with a judgment, this necessarily precludes recognition of the judgment. To this extent, it governs the recognition and enforcement of judgments. The New York Convention could, therefore, come within the terms of Article 71(1), in which case Brussels 2000 would also be subject to it. If this is correct, Article 73(2) of Brussels 2012 does not change the position; nevertheless, it is desirable for the matter to be put beyond doubt.

Since the New York Convention imposes a limit on the application of the Brussels I Regulation, it is necessary to consider how it is interpreted. One obvious difference between the two instruments is that, while the CJEU ensures that the Regulation is interpreted uniformly in all the States in which it applies, there is no equivalent court with regard to the New York Convention: the courts of each Contracting State decide for themselves how it should be interpreted. Although all the EU Member States are Parties to the New York Convention, the Union itself is not a Party; so the CJEU has no jurisdiction to interpret it.Footnote ⁶⁵ Even within the Union, therefore, the courts of each Member State interpret it for themselves.

The consequence of this is that an instrument which the courts of each Member State are free to interpret for themselves imposes a limit on the application of an EU measure, the Brussels I Regulation. A somewhat analogous situation arises under the rule that the courts of Member States may refuse to recognize judgments from other Member States on grounds of public policy.Footnote ⁶⁶ Since it is for each Member State to decide for itself what its public policy requires, this also constitutes a limit of uncertain scope on the application of the Brussels I Regulation. However, the CJEU has decided that it has the power to lay down the outer boundaries of Member State jurisdiction in this regard: it is only within those boundaries that the courts of Member States can refuse, on public policy grounds, to recognize a judgment from another Member State.Footnote ⁶⁷ In this way, the CJEU has sought to avoid the establishment of an open-ended escape mechanism from the obligation to recognize judgments under the Regulation. It remains to be seen whether the CJEU will impose a similar limit on the freedom of Member-State courts to interpret the New York Convention in a way which imposes unreasonable restrictions on the application of the Brussels I Regulation.

B. The Recitals

EU regulations normally begin with recitals, which are intended to provide guidance on the interpretation of the substantive provisions. Brussels 2012 contains a large number of recitals, and one of them concerns arbitration. This is Recital 12, which may be regarded as an aid to the interpretation of the provision excluding arbitration from the scope of the Regulation and to the provision that the New York Convention prevails over the Regulation. There are four paragraphs to Recital 12 and we will consider each in turn.

The first paragraph begins by stating that the Regulation does not apply to arbitration. This is expressly stated in Article 1(2)(d); however, by repeating it at the beginning of Recital 12, it is made clear that the recital is intended to clarify the interpretation of Article 1(2)(d).

The first paragraph of Recital 12 goes on to state that nothing in the Regulation prevents the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from:

• • referring the parties to arbitration,

• • staying or dismissing the proceedings, or

• • examining whether the arbitration agreement is null and void, inoperative or incapable of being performed.Footnote ⁶⁸

Recital 12 states that this is to be done according to the national law of the Member State in question, thus making clear that EU law does not apply.

The next paragraph provides that a ruling by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performedFootnote ⁶⁹ is not subject to the rules of recognition and enforcement in the Regulation, regardless of whether the court decided it as a principal issue or as an incidental question. Although this provision does not expressly apply to rulings on the applicability of an arbitration agreement,Footnote ⁷⁰ there is little doubt that this too is covered.

The paragraph makes clear that such a ruling does not have to be recognized, regardless of what the objet was of the proceedings in which it was granted. It could therefore be regarded as an exception to the rule laid down in the Marc Rich case that, for the purpose of determining the scope of the Regulation, incidental questions must be characterized on the basis of the objet of the proceedings. Consequently, the court before which substantive proceedings are pending can decide for itself, according to its own law,Footnote ⁷¹ whether those proceedings are subject to an arbitration agreement; however, its ruling is not binding under the Regulation on the courts of other Member States. The latter can make up their own minds on the issue, according to their own law.

If we take the Marc Rich case as an example, the Recital means that a ruling by the Italian courts that the arbitration clause was not part of the contract would not be binding under the Regulation on the English courts; however, a ruling to the opposite effect by the English courts would not be binding under the Regulation on the Italian courts.

The third paragraph of the Recital states that where a court of a Member State, exercising jurisdiction under the Regulation or under national law,Footnote ⁷² has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this does not preclude the court's judgment on the substance from being recognized and enforced under the Regulation. This establishes that the view expressed by the United Kingdom at the time of the negotiations for UK adhesion to the Brussels Convention is not correct. Proceedings before a court are not excluded from the scope of the Regulation just because they are, in the view of other Member States, covered by an arbitration agreement. The fact that the court of origin took jurisdiction after deciding that an arbitration agreement was invalid or inapplicable does not disentitle the resulting judgment from recognition and enforcement under the Regulation.

However, the third paragraph provides that this is without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the 1958 New York Convention, which (as we have seen) takes precedence over the Regulation. The effect of this will be considered below.

Finally, the Recital confirms the established view that the Regulation does not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award. Such proceedings are not affected by the Regulation—for example, with regard to jurisdiction and the application of the lis pendens rule; it also means that judgments and orders given in such proceedings are not subject to recognition under the Regulation.

The effect of Recital 12 is that the law discussed above continues to apply. This includes the judgments of the CJEU in Marc Rich and West Tankers. However, the Recital clarifies a number of matters, especially the situation where a court gives a judgment in a dispute which, in the view of a court in another Member State, is subject to an arbitration agreement.

From all this, it will be seen that the policy of the European Union is to establish a reasonable balance between arbitration and litigation as alternative methods of dispute resolution. There is no general policy that arbitration should prevail over litigation, though, by giving precedence to the New York Convention, the Regulation ensures that awards trump judgments in certain circumstances.

Having considered the new Regulation, we can complete our survey by discussing the remaining issues.