Some additional comments on the (now amended) Heidelberg Report: A reply to Professor Hess
I am grateful to Professor Hess for his comments on my 3 March 2010 blog. It greatly contributes to advancing the debate. However, it also perfectly illustrates the difficulties of a proposition – the total or partial deletion of the arbitration exception in Regulation 44/2001 – that has not been sufficiently thought through.
1. Professor Hess now introduces a very significant change in the Heidelberg proposal.
In his 14 February post on ConflictsofLaw.net, he had acknowledged that “the proposal of the Heidelberg Report to delete the arbitration exception entirely maybe goes too far”.
Professor Hess now proposes for the first time an alternative to the Heidelberg proposal by drafting [...]
« Circulez, il n’y a rien à voir ! ». A Response to Professor Hess
Professor Hess is the author of the chapter of the Heidelberg Report on the interplay between arbitration and the Regulation 44/2001 (“the Regulation”). As such, and quite understandably, he actively promotes the suggestion that the arbitration exception should be deleted from the Regulation.
The Heidelberg proposal has been followed by a Green Paper of the European Commission and by a public consultation, which has given rise to numerous reactions from the arbitration community. Many of these reactions expressed a variety of serious concerns on the impact that the extension of the scope of the Regulation to arbitration related court litigation could have. Those concerns relate to possib [...]
The Relationship Between Enforcing Judgments and Denial of Justice Claims?
My colleague Trey Childress has a nice summary of the recent decision by a federal court in Florida in Osorio v. Dole Food Company to refuse to enforce a $97 million Nicaraguan judgment. Here’s the key excerpt of the decision:
“the evidence before the Court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process. It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law. Both t [...]
English Court Retains Jurisdiction Notwithstanding French Arbitration Clause
- By Richard Hill, Fulbright & Jaworski LLP,
for YIAG
In the recent decision in Youell v La Reunion Aerienne [2009] EWCA Civ 175 the English Court of Appeal applied the ECJ decision in West Tankers and upheld a Commercial Court decision holding that the mere fact that a contract contains an arbitration clause does not deprive the court of jurisdiction under the Brussels Regulation. The appropriate remedy for a party alleging that English court proceedings are brought in breach of an arbitration agreement was therefore not to challenge the court’s jurisdiction but rather to seek a stay of the court proceedings under Section 9 of the Arbitration Act.
The claimants, London market insurers, and the defendants, French market insurers, bot [...]
The Regulation of International Arbitration by European Law: What Does the Future Hold?
The relationship between Arbitration and European Judicial Private Law has not always been easy. The bedrock European Law principle in this field, as embedded in the European Council Regulation (EC) No. 44/2001 of December 22, 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Judgment Regulation”), is the free movement of judgments in the European Judicial Area. Arbitration law, in contrast, is diverse, each country having is own rules and its own conceptions of the status and effects of international awards.
The Judgment Regulation, as well-known, does not apply to arbitration, which is expressly excluded from its scope of applic [...]
