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I would like to thank Dr Jan Kleinheisterkamp, Dr Jacco Bomhoff (both of LSE) and Elisabeth Tretthahn for their help. None of them is responsible for what I have written. There have been a number of studies on this topic; three of the most recent are S Camilleri, 'Recital 12 of the Recast Regulation: A New Hope?' (2013) 62 ICLQ 899; G Möller, 'The Brussels I(a) Regulation and Arbitration' in Patrik Lindskoug et al. (eds), Essays in Honour of Michael Bogdan, Juristförlaget i Lund (distribution: eddy.se:
) (2012) 374; L Wilhelmsen, 'European Perspectives on International Commercial Arbitration' (2014) 10 J Priv Int L 113.
Since arbitration is excluded from the scope of both the old (2000) and the new (2012) versions of the Brussels I Regulation,1it might be thought that the Regulation could have no impact on it. In fact, this is not the case: there are many important issues concerning their relationship.
I.
WHAT IS EXCLUDED?
The first question is: what exactly is excluded from the scope of the Regulation? The relevant provision states simply: 'This Regulation shall not apply to ... arbitration.'2Does this mean merely that proceedings before an arbitrator are outside the scope of the Regulation, or does the exclusion also cover court proceedings relating to arbitration? Does it perhaps go even further and cover any court proceedings if the dispute in question is subject to an arbitration agreement?
Since the exclusion applies, in identical terms, not only under Brussels 2000 and Brussels 2012, but also under the forerunner of the Brussels Regulations, the Brussels Convention,3it is legitimate to look at the case law under the Convention;4it is also legitimate to consider the official reports on it. We start with the reports.
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.5This states, first, that...