V SREDIŠČU

International Commercial Arbitration: Allocation of Competence between Municipal Courts and Arbitral Tribunals under Article II (3) of the 1958 NY Convention and Anti-Suit Injunctions under Brussels I (Recast) and Gazprom OAO

prof. dr. John JA Burke

This article addresses two related issues: (1) the gateway question of International Commercial Arbitration: who, national courts or arbitral tribunals, has primary competence to decide whether parties have entered into an internationally cognizable arbitration agreement, and (2) anti-suit injunctions under the revised European Union Regulation. The uncertainty, for the first issue, stems from the legal status accorded to Article II (3) of the New York Convention on the recognition and enforcement of foreign arbitral awards of 1958 [1958 NYC or Convention]. Article II (3) obliges Courts of a Contracting State to refer parties to arbitration provided conditions precedent are met thereby creating a potential conflict with the doctrine of “Kompetenz/Kompetenz” conferring upon arbitral tribunals the power to determine their jurisdiction. The potential resurrection of anti-suit injunctions in Europe stems from the decision in Gazprom OAO v. Lietuvos Respublika and the more explicit clarification of the arbitration exclusion found in Brussels I Recast.