Janna Purdie highlights how EU judgments can interfere in arbitration proceedings
The ambit of the arbitration exclusion in the Judgments Regulation (Art 1(2)(d)) when determining court jurisdiction has for many years been the subject of debate. However, the ECJ decisions of Marc Rich v Societa Italiana Impianti (the Atlantic Emperor) C-190/89 [1991] and Allianz v West Tankers (the Front Comor) (C-185/07) [2009] have settled the scope of the exclusion. The question that remained was what happens if a foreign court determines that it has jurisdiction?. Is that judgment binding on an English court in subsequent arbitration proceedings such that it creates issue estoppel preventing the English court from determining the same question?.
This question was considered recently by the Court of Appeal in National Navigation v Endesa Generacion SA, [2009] All ER (D) 179 (Dec). The first instance decision held that issue estoppel did not arise. This was on the basis that the subsequent English arbitration proceedings fell within the arbitration exclusion in Art 1(2)(d) and the Judgments Regulation and judgments made under it did not
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