Paris Court of Appeal reverses ruling on arbitrators’s liability: holds it falls outside Brussels Ia.

I did say I was mopping up the queue this week so here’s a post reminding us of the Paris Court  of Appeal overturning an earlier judgment which had held that an arbitrator’s liability falls within Brussels Ia. I have analysis and further reference to the first instance judgment here, and Gilles Cuniberti’s approving view on the Court of Appeal’s decision is here.

The ruling means the court of the locus arbitri, the curial seat as agreed between the parties, is the natural home for any subsequent disputes involving liability of the arbitrators. I agree with Gilles that this makes a lot of sense from a consolidation and neutrality point of view. I do not however feel for a moment that it clearly follows from Brussels Ia, including its arbitration recital (which has the trimmings of an encyclopaedia, weighing in at more than half a page and 4 paragraphs).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff..

Yet more on The Prestige recognition tussle. On service, state immunity and the insurance title of Brussels Ia.

I have twice already reported on The Prestige recognition issue: see here and here. In a further judgment at the end of July, [2020] EWHC 1920 (Comm), Butcher J after helpfully summarising the various claims, considered

  • whether a Member State may be served under the EU Service Regulation 1393/2007, or whether residual PIL (here: the UK State immunity Act) may insist on an alternative. This did not so much engage the issue of ‘civil and commercial’ (CJEU Fahnenbrock being cited) on which both parties agreed. Rather on the exhaustive effect or not of the Service Regulation, in particular, whether Member States may insist on service upon authorities of other Member States via diplomatic means only. Butcher J holding correctly in my view at 45, that service via the means provided for in the Regulation, suffices.
  • next, whether the case engages sovereign immunity of Spain and France which Butcher J held that they do not for the most part. He mostly cites the States’ submission to arbitration in this respect.
  • further, whether the English courts have jurisdiction or whether that is ruled out by virtue of the arbitration exception or the insurance title of the Regulation (at 93 ff; the preceding paras concern claims which fall outside BIA and are to be judged under common law). At 107 Butcher J holds that the arbitration exclusion is not engaged, citing national and CJEU authority as well as recital 12 BIa, and holding at 108 that ‘(t)he present Judgment Claims are a further step beyond what is contemplated by an ‘action or judgment concerning … the enforcement of an arbitral award’ in recital (12).’ As for the insurance heading, with reference to Aspen Underwriting, he holds that the insurance title is engaged, and (at 132) that the States they are entitled to the jurisdictional protections of Section 3, without it having to be shown that they are in fact economically weaker parties. (There is a lingering doubt over one of the claims subrogated to Spain). The insurance title being engaged, this mains that the parties protected by it may only be sued in their jurisdiction (Article 14(2)’s exception to that was held not to be applicable), hence the English Courts for those claims do not have jurisdiction.

The result is a partial jurisdiction in England only – and permission to appeal, I imagine.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1, Heading 2.2.11.2, Heading 2.2.16.

 

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