Abstract
This chapter will examines the impact of Brexit on arbitration agreements by focusing on three main issues: (a) the construction and enforceability of arbitration agreements between businesses; (b) the enforceability of arbitration agreements between businesses and consumers; and (c) the impact of Brexit on arbitration agreements under bilateral investment treaties (BITs) between the United Kingdom and other EU Member States. While Brexit is not going to have anu immediate impact on the enforceability on arbitration agreements between businesses and consumers, as regards business-to-business agreements and BITs, Brexit has freed English law from the “anti-arbitration” jurisprudence of the Court of Justice. As a consequence, English courts are once again at liberty of develo** arbitration law in light of the principle party autonomy and so as to protect and foster as a fair and effective way of resolving disputes.
Renato Nazzini is Professor of Law at the Dickson Poon School of Law, Kings College London, University of London and a partner of LMS Legal LLP, London, United Kingdom
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Notes
- 1.
The main piece of legislation, equivalent to the Arbitration Act 1996, is the Arbitration (Scotland) Act 2010.
- 2.
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6, Art 1(2)(e).
- 3.
Council Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I Regulation Recast) [2012] OJ L351/1.
- 4.
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6, Art 1(2)(e).
- 5.
- 6.
Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (CDC) ECLI:EU:C:2015:335.
- 7.
Case C-352/13 CDC, para 10.
- 8.
Case COMP/F/C.38.620 Hydrogen Peroxide and perborate [2006] OJ L353/54.
- 9.
Case C-352/13 CDC, paras 9–13.
- 10.
Case C-352/13 CDC, para 14.
- 11.
Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (CDC) ECLI:EU:C:2014:2443, Opinion of Advocate General Jääskinen, para 132.
- 12.
Case C-352/13 CDC, para 58: ‘it must be made clear that, with regard to certain terms derogating from otherwise applicable rules allegedly contained in the contracts at issue but which do not fall within the scope of application of Regulation No 44/2001, the Court does not have sufficient information at its disposal in order to provide a useful answer to the referring court.’
- 13.
Ibid, paras 67–72.
- 14.
Ibid, paras 68–70.
- 15.
Ibid, paras 62 and 63.
- 16.
Kemira Chemicals Oy v CDC Project 13 SA ECLI:NL:GHAMS:2015:3006 (21 July 2015, Gerechtshof Amsterdam), para 2.14.
- 17.
Ibid, para 2.16.
- 18.
Fiona Trust v Privalov [2007] 4 All ER 951 (HL), para 6.
- 19.
Ibid, para 7.
- 20.
Ryanair v Esso [2013] EWCA Civ 1450, para 21.
- 21.
Ibid, para 44.
- 22.
Ibid, para 44.
- 23.
Ibid, para 12 (referring to Ryanair’s argument).
- 24.
Ibid, paras 27–41.
- 25.
Microsoft Mobile Oy (Ltd) v Sony Europe Ltd [2017] EWHC 374 (Ch), para 45.
- 26.
Ibid, para 72.
- 27.
Ibid.
- 28.
Ibid, para 81.
- 29.
Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts [1993] OJ L95/29 (Unfair Terms in Consumer Contracts Directive).
- 30.
Unfair Arbitration Agreements (Specified Amount) Order 1999/2167, Art 3.
- 31.
Unfair Terms in Consumer Contracts Directive, Art 2(b).
- 32.
See also Competition and Markets Authority (‘CMA’), ‘Unfair Contract Terms Guidance: Guidance on the Unfair Terms Provisions in the Consumer Rights Act 2015’ (CMA37, 31 July 2015) paras 5.29.2–6.
- 33.
Consumer Rights Act 2015, s 76(2), read in conjuction with s 2(3).
- 34.
For example, see Green Tree Fin Corp v Randolph, 531 S Ct 59 (2000).
- 35.
Nazzini (2016), p. 429.
- 36.
See eg Campbell v Gen Dynamics Govt Sys Corp, 407 F 3d 546 (US Ct of Apps (first Cir) 2005) 558–59.
- 37.
Note that the position of consumer arbitration in the United States has been the subject of political debate. Legislation in the form of an Arbitration Fairness Bill has been proposed on several occasions. This would render consumer disputes inarbitrable altogether, although this appears unlikely to be enacted in the current political climate. Legislation has been passed, however, which is likely to lead to limits on consumer arbitration in certain contexts. For example, The Dodd-Frank Act 2010 empowers the Consumer Financial Protection Bureau to regulate the use of arbitration clauses in consumer financial services contracts. For general discussion, see Mechantaf (2012).
- 38.
Case C-168/05 Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421, paras 24–39.
- 39.
Case C-40/08 Asturcom Telecommuncaciones SL v Rodríguez Nogueira [2009] I-9579, paras 49–59.
- 40.
UNCTAD investment hub website http://investmentpolicyhub.unctad.org/IIA/IiasByCountry#iiaInnerMenu (accessed on 12 June 2018).
- 41.
Ibid.
- 42.
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Romania for the Promotion and Reciprocal Protection of Investments, London, 13 July 1995 (entered into force on 10 January 1996) Art 7(1) and (2).
- 43.
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Bulgaria for the Promotion and Reciprocal Protection of Investments, London, 11 December 1995 (entered into force on 24 June 1997), Treaty Series No 52 (1997), Art 9; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Croatia for the Promotion and Reciprocal Protection of Investments, London, 11 March 1997 (entered into force on 16 April 1998), Treaty Series No 29 (1998), Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Czech and Slovak Federal Republic for the Promotion and Protection of Investments with Protocol, Prague, 10 July 1990, with an amending Exchange of Notes, Prague, 23 August 1991 and 24 October 1991 (the Exchange of Notes entered into force on 24 October 1991 and the Agreement entered into force on 26 October 1992), Treaty Series No 42 (1993), Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Estonia for the Promotion and Protection of Investments, London, 12 May 1994 (entered into force on 16 December 1994), Treaty Series No 30 (1995), Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Hungarian People’s Republic for the Promotion and Reciprocal Protection of Investments, Budapest, 9 March 1987 (entered into force on 28 August 1987), Treaty Series No 3 (1988), Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Latvia for the Promotion and Protection of Investments, London, 24 January 1994 (entered into force on 15 February 1995), Treaty Series No 60 (1995), Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Lithuania for the Promotion and Protection of Investments, Vilnius, 17 May 1993 (entered into force on 21 September 1993), Treaty Series No 3 (1994), Art 8; Agreement between the Government of the Republic of Malta and the Government of the United Kingdom of Great Britain and Northern Ireland for the Promotion and Protection of Investments, Valletta, 4 October 1986 (entered into force on 4 October 1986), UNTS Vol 1667 No 28661, p 132, Art 8; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Slovenia for the Promotion and Protection of Investments, Ljubljana, 3 July 1996 (entered into force on 12 May 1999), Treaty Series No 50 (1999), Art 8.
- 44.
Case C-284/16 Slowakische Republik v Achmea BV ECLI:EU:C:2018:158 (Grand Chamber).
- 45.
Ibid, paras 13–22.
- 46.
Opinion of AG Wathelet in Case C-284/16 Slowakische Republik v Achmea BV ECLI:EU:C:2017:699, paras 84–273.
- 47.
Case C-284/16 Slowakische Republik v Achmea BV ECLI:EU:C:2018:158, paras 32–60.
- 48.
Ibid, paras 39–42.
- 49.
Ibid, paras 43–49.
- 50.
Ibid, paras 50–53.
- 51.
Ibid, para 55.
- 52.
Ibid, para 54.
- 53.
Ibid, paras 33, 35, and 57.
- 54.
Ibid, para 34.
- 55.
Ibid, para 56.
- 56.
Ibid, para 55.
- 57.
For a similar argument pre-Achmea, see Burgstaller and Zarowna (2016), pp. 569–570.
- 58.
This is a joke in form but perhaps not necessarily also in substance.
- 59.
Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries [2012] OJ L 351/40.
References
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Nazzini R (2018) Arbitrability of cartel damages claims in the European Union: CDC, Kemira, and Microsoft Mobile. Univ Qld Law J 37(1):127–138
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Nazzini, R. (2024). Brexit and Arbitration Agreements. In: Heidemann, M. (eds) The Transformation of Private Law – Principles of Contract and Tort as European and International Law. LCF Studies in Commercial and Financial Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-031-28497-7_4
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