The ECJ West Tankers judgment has been the subject to turbulent discussions. The decision follows the line of argumentation expressed in the previous “arbitration” ECJ decisions (namely in the Turner case) in terms of the exclusion of arbitration from the scope of the Brussels I Regulation and the consequences on the practice of arbitration in the UK of the doctrine of incompatibility of anti-suit injunctions. The author believes that it is ill-conceived and inappropriate to determine the scope of application of the Regulation based upon the subject matter of the dispute (as in the Marc Rich case or the Van Uden case). In West Tankers, it was held that the subject matter of the dispute was the compensation for the damage caused by unlawful acts, which fell within the scope of the Regulation, and that the existence and application of the arbitration clause was merely a procedural objection, to be addressed by the court when reviewing its own jurisdiction. The argument appears unconvincing. Even though one can agree with the application of the New York Convention and its interrelation with the Regulation, as presented e.g. by the Advocate General in the opinion on West Tankers, reference was not made to an ‘exemption’ from the scope of the Regulation for arbitration proceedings merely because of the New York Convention. In no way may Article 1(2)(d) of the Regulation be understood as an exemption. It is merely the negative part of the definition of the scope of the Regulation. Using the term exemption means that the Regulation has usurped the authority to interfere with practically all spheres of jurisdictional authority of the individual member states, leading to a denial of their sovereignty. Such an approach denies the very principle of arbitration, which is based on the freedom of contract and on the legis arbitri.
The concept endorsed by the ECJ in West Tankers may indeed give a foretaste of the future of arbitration in the EU. The West Tankers judgment is relevant not only for the institution of anti-suit injunctions. Its significance is substantially broader and highly alarming, since it is nothing less but an implied (though in no way concealed) move to apply all Community principles to arbitration and to subject arbitration proceedings (more or less completely) to Community law.ASA Bulletin