Opinion of Mr Advocate General Darmon delivered on 19 February 1991

1 Original language: French.

2 See for example the judgment in Case 144/86 Gubisch v Patumbo [1987] EC R 4861, in which the Court adopted an independent and extensive definition of the term lis pendem; with respect to that judgment, see in particular Gaudemet-Tallon, H. RCD1P, 1988, p. 371; Huet, A. Clunet, 1988, p. 537; Linke, R1W, 1988, p. 818, particularly at p. 822.

3 Fouchard, P. L'arbitrage commercial international Dalloz, Paris 1965, particularly at p. 25.

4 Mayer, P. L'autonomie de l'arbitre international dans l'appréciation de sa propre compétence, Recueil des cours de l'Académie de droit international de la Haye, 1989, V, Volume 217, p. 321, Martinus Nijhof, 1990.

5 With regard to Worldwide recourse to international arbitration, see in particular Gaudet, M. in L'arbitrate — travaux offerts au professeur Albert Fettweis, Story-Scientia, 1989, p. 339 et seq.

6 Van den Berg, A. J. The New York Arbitration Convention of 1958, 1981, T. M. C. Asser Institute, The Hague, p. 1.

7 For a comprehensive analysis of the relationship between Community law and arbitration, see in particular Kovar, R. Droit communautaire de la concurrence et arbitrage, in Le droit des relations économiques internationales, Études offertes à Bertbold Coldman, 1982, p. 109; Goffin, L. Arbitrage et droit communautaire, in L'arbitrage, travaux offerts au professeur Albert Fettweis, Story-Scientia, 1989, p. 159; de Mello, X. Arbitrage et droit communautaire, Rev. arb., 1982, p. 349; it will be remembered that, in its judgment in Case 102/81 Nordsee [1982] ECR 1095, the Court stated that an arbitrator may not seek a preliminary ruling from the Court under Article 177.

8 Emphasis added.

9 Report by Mr P. Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ 1979 C 59, p. 1, particularly at p. 13. See also the report by Professors D. Evrigenis and K. D. Kerameus on the accession of the Hellenic Republic to the Convention (OJ 1986 C 298, p. 1, particularly at p. 10): Arbitration, a form of proceedings encountered in civil and, in particular, commercial matters (Article I, second paragraph, point 4), is excluded because of the existence of numerous multilateral international agreements in this area.

10 See in particular A. J. van den Berg, op. cit., particularly at p. 6 et seq.

11 However, by lateral agreement had been concluded, in particular, between European sutes, since the second half of the nineteenth century.

12 Legislation was also adopted on the initiative of the International Chamber of Commerce, which was particularly active in the preparation, being undertaken at the same time, of international conventions on arbitration.

13 League of Nations, Treaty Series 158 (1924).

14 League of Nations, Treaty Seriei 302 (1929-1930).

15 See A. J. van den Berg, op. cit., particularly at p. 7.

16 For a summary, see A. J. van den Berg, op. cit., p. 9.

17 Ensured by Article II 3 of the Convention:The Court of a Contracting State, when seized of an action in a matter in respect of which the panics have made an agreement within the meaning of chis article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

18 Portugal, a signatory to the Geneva Conventions, has not to date acceded to the New York Convention.

19 Redfern, A. and Hunter, M. Law and practice of international commercial arbitration, Sweet and Maxwell, London 1986, p. 43.

20 Ibid., p. 362.

21 With respect thereto, see Jarvin, La loi — type de la CNUDCI, Rev, arb., 1986, p. 509; Fouchard, La loi — type de la CNUDCI sur l'arbitrage commercial international, Clunet, 1987, p. 861 ; Redfern and Hunter, op. cit., p. 402 et seq.

22 For an example of legislation adopting the model law, see Alvarez, A. La nouvelle legislation canadienne sur l'arbitrage commercial international, Rev. arb., 1986, p. 529.

23 With regard thereto, see in particular Fouchard, op. cit., p. 135 et seq.; Mayer, op. cit.; Redfern and Hunter, op. cit., p. 213-215; Mustil! and Boyd, Commercial arbitration, London, Butterworths, 1982, p. 516 et seq.

24 Redfern and Hunter, op. cit., p. 395.

25 Mention must also be made of the Convention on the settlement of investment disputes between States and nationals of other Sutes, 1965, known as the Washington Convention (United Nations Organization, Treaty Series, 1966, Vol. 575, p. 160, 8359); the Convention applies to disputes between contracting States and nationals of another Sute concerning investments.

26 See in particular Hascher, D. Commenury on the European Convention on Commercial Arbitration, Yearbook Commercial Arbitration, Vol. XV, 1990, p. 619.

27 European Treaty Series 1966.

28 Article IX of the Convention.

29 Germany, Belgium, Denmark, Spain, France, Italy and Luxembourg; accession to the Convention is open to non-European States.

30 The last decade has seen a large number of national reforms which are favourable to international arbitration; thus, in the United Kingdom the Arbitration Act 1979 has considerably limited actions to have international arbitral awards set aside i the French legislative revision of 1981 is marked by a very liberal attitude concerning international arbitration, as is the Belgian Law of 1985 and the Portuguese Law of 1986; see also the Iulian Law of 1983, the German and Netherlands laws of 1986 modernizing the arbitration process, and the Spanish law of 1988 display the same underlying wish to favour international arbitration; see also, outside the Community, the Federal Swiss law of 1987 on private international law.

31 Mustill and Boyd, op. cit., p. 7; this quotation irresistibly evokes the terms of the extremely important decision in Mitsubishi v Soler (105 S Ct, 1985, p. 3346) of the Supreme Court of the United States in which it was conceded that it was possible to refer to arbitration claims based on the Sherman Act in the context of a dispute relating to an international commercial transaction: we are well past the time when judicial suspicion of the desirability of arbitration and the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution; with regard to that judgment, see in particular Robert, J. Une date dans l'extension de l'arbitrage international: l'arrêt Mitsubishi c/Soler, Rev. arb., 1986, p. 173, and the references in Carbonneau, T. E. Le droit américain de l'arbitrage (L'arbitrage, travaux offerts au professeur Albert Fettweis, above), particularly at p. 210, note 20.

32 With regard to lex mercatońa, see in particular Goldman, B. Frontières du droit et lex mercatońa, Archives de philosophie du droit, 1964, p. 177; La lex mercatoria dans les contrats et l'arbitrage internationaux: réalités et perspectives, Clunet, 1979, p. 475; Mustill, M. The New Lex Mercatoria, Liber amicorum for Lord Wilberforce, 1987, Bos and Brownlie editors; Paulsson, J. La lex mercatoria dans l'arbitrage C. C. L, Rev. arb., 1990, No 1, p. 55; for critical assessments, see in particular Lagarde, P. Approche critique de la lex mercatoria, Le droit des relations économique internaüonales, Etudes offenes à Berthold Goldman, 1982, p. 125, and the authors cited by Paulsson, op. cit., p. 57, Note 11.

33 With regard to the delocalization of international arbitration, see in particular Fouchard, op. cit., p. 22 et seq; Paulsson, Arbitration Unbound: Award Detached from the Law of its Country of Origin (1981) 30 ICLQ 358; Delocalization of International Commercial Arbitration: When and Why it Matters (1983) 32 ICLQ 53; Sanders, Trends in the Field of International Commercial Arbitration, Recueil des Cours de l'Acadmémie de la Haye, 1975, Vol. II, p. 207; for a critical analysis of that theory, see in particular Redfern and Hunter, op. cit., p. 55 et seq.; Park, The lex fori arbitri and International Commercial Arbitration (1983) 32 ICLQ; A. J. van den Berg, op. cit., p. 29 et seq.

34 See in that connection two articles written after the present reference for a preliminary ruling was made: Thomas, D. R. The Arbitration Exclusion in the Brussels Convention 1968: An English Perspective, Journal of International Arbitration, 1990, p. 44; the author favours a solution excluding the proceedings brought before the national court from the scope of the Convention; the opposite view is advocated by Bonell, M. J. Le Corte Inglesi e i contratti commerciali internazionali: English law and jurisdiction über alles?, Diritto del commercio internazionale, Practica internazionale e diritto interno, July-December 1989, p. 329.

35 Sec for example Case 133/81 Ivenel and Schwab [1982] ECR 1891; and Case 288/82 Dinjmtee [1983] ECR 3663; Case 189/87 Kalftlii [1988] ECR 5565.

36 Part I Section 3(3) is worded as follows: 3. Interpretation of the Conventions: (1) Any question as to the meaning or effect of any provision of the Convention shall, if not referred to the European Court in accordance with the 1971 Protocol, be determined in accordance with the principles laid down by and any relevant decision of the European Court. (2) Judicial notice shall be taken of any decision of, or expression of opinion by, the European Court on any such question. (3) Without prejudice to the generality of subsection (1), the following reports (which are reproduced in the Oj of the Communities), namely - (a) the reports by Mr P Jenard on the 1968 Convention and the 1971 Protocol; and (b) the report by Professor Peter Schlosser on the Accession Convention, may be considered in ascertaining the meaning or effect of any provision of the Conventions and shall be given such weight as is appropriate in the circumstances.

37 See the Schlosser Repon, paragraphs 61 and 62 (OJ 1979 C 59, pp. 92 and 93).

38 Schlosser Report, above, paragraph 61.

39 P. 44 of the its observations.

40 ChristoptT Brown v Genossenschaft Österreichischer Waldbesitzer und Holzwirtschaftsbetriebe, Registrierte Genossenschaft mit beschränkter Haftung (1952 C 3851) 1 Q. B. 1954, p. 8, particularly at 12 and 13 —emphasis added.

41 Jenard Report, supra, at p. 10; Betlet, P. L'elaboration d'une convention sur la reconnaissance des jugements dans le cadre du marche commun, Clunet, 1965, p. 833, and particularly at 851 and 852.

42 Above, at paragraph 64(b).

43 See in particular Kaye, Civil Jurisdiction and Enforcement of Foreign Judgments, Professional Books Limited, 1987, p. 148; Collins, L. The Civil Jurisdiction and Judgments Act 1982, London, Butterworths, 1983, p. 29; Lasok, D. and Stone, P. A. Conflict of Laws in the European Community, Professional Books Limited, 1987, p. 185; Hartley, T. C. Civil Jurisdiction and Judgments, Sweet and Maxwell, p. 22 ; Beraudo, Convention de Bruxelles du 27 septembre 1968, Jurisclasseur Europe, fase. 3000, p. 10, No 34.

44 La Convention de Bruxelles du 27 Septembre 196S, Jupiter 1985, p. 15, paragraph 29; see also Kaye, (op. cil., pp. 151-152, In spite of the absence of any express provision in Article 1 of the Convention to such effect, it is widely accepted that it is only the principal subject-matter of proceedings which is to be taken into account in determining whether the latter are within the Convention's scope and that, accordingly, excluded areas which merely arise as incidental issues in the course of main proceedings to which the Convention applies, are themselves subject to Convention jurisdiction and recognition and enforcement rules along with the main claim, while, equally, matters to which the Convention would be applicable if they had formed the principal subject-matter of proceedings, but which are raised incidentally in excluded main proceedings, also fall outside Convention jurisdiction and recognition and enforcement provisions) and Beraudo (op. cit., p. 12, No 40, ... an incidental issue, relating to the Convention, cannot cause to be brought within the scope of the Convention a matter excluded from it which is the principal subject-matter of the proceedings).

45 OJ 1979 C 59, p. 93, paragraph 64.

46 Kayc, op. cit., p. 150; Hirst, J. also referred to that opinion in his judgment.

47 See Article V (3): Subject to any subsequent judicial control provided for under the lex /ori, the arbitrator whose jurisdiction is called in question shall be entitled to proceed with the arbitration, to rule on his own jurisdiction and to decide upon the existence and validity of the arbitration agreement or of the contract of which the agreement forms part; and Article VI (3): Where either party to an arbitration agreement has initiated arbitration proceedings before any resort is had to a court, courts of Contracting States subsequently asked to deal with the same subject-matter between the same parties or with the question whether the arbitration agreement was nonexistent or null and void or had lapsed, shall stay their ruling on the arbitrator's jurisdiction until the arbitral award is made, unless they have good and substantial reasons to the contrary.

48 OJ 1976 C 59, p. 13.

49 Ibid., p. 93.

50 Case 38/81 [1982] ECR 825.

51 OJ 1986 C 298, p. 10.

52 Op. cit., p. 15.

53 Droz, G. A. L. Compétence judiciaire et effets des jugements dans le marche commun (Etude de la Convention de Bruxelles du 27 September 1968), Bibliothèque de droit international privée Dalloz, 1972, pp. 27-28 — emphasis added.

54 OJ 1979 C 59, p. 13.

55 Ibid., p. 93.

56 Ibid., p. 92.

57 OJ 1986 C 298, p. 10.

58 See in particular Kaye, op. cil., particularly at p. 146 el seq.; Lasok and Stone, who state the effects of Article l(2)(iv) seem largely clear and uncontroversial, op. cit., p. 185; T. C. Hartley, op. cit., p. 22; L. Collins, op. cit., p. 29; Droz, op. cit., p. 37; Beraudo, op. cit., p. 10, paragraph 34; moreover, the latter regrets that the Convention does not contain a uniform rule for situations where courts are seised despite the existence of an arbitration agreement and docs not provide that an arbitral award may negate recognition and prevent enforcement of a judgment given in another Member State.

59 For views favouring recognition and enforcement of the judgment in this specific case, see in particular Lasok and Stone, op. cit., p. 186; Kaye, op. cit., p. 147; Cheshire and North's Private international Law, 11th Edition, Butterworths, 1987, pp. 426-427; and for a view against recognition. Hartley, op. cit., p. 97.

60 Lasok and Stone, op. cit., pp. 175-186; Kaye, op. cit., p. 146 et seq.

61 P. 3 of his opinion.

62 Ibid.

63 On this question, sec A. J. van den Berç, op. cit., p. 346 et seq.; in tne United Kingdom, that possibility derives from Section 26 of the Arbitration Act 1950: An award on an arbitration agreement may, by leave of the High Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect, and where leave is so given judgment may be entered in terms of the award.

64 Paris, 20 October 1959, Rev. arb., 1960, p. 48; Corte di Cassazione, 27 February 1979, No 1273, Yearbook Commercial Arbitration, 1982, 333; Bundesgerichtshof, 10 May 1984, WM 1984, 1014 (on that judgment, see in particular Liier, H. J. German Court Decisions Interpreting and Implementing the New York Convention, Journal of International Arbitration, March 1990, p. 127, particularly at 129, and Note 14).

65 A. J. van den Berg, op. cit., p. 347.

66 Sec in that connexion the judgment of the Oberlandesgericht Hamburg, considered by A. J. van den Berg, op. cit., p. 347.

67 See for example the judgment of the Bundesgerichtshof, cited above, and the judgment of the Corte di Cassazione, cited above (see in particular Yearbook Commercial Arbitration, 1982, Vol. 7, p. 334: the Corte di Cassazione found that, therefore, the English awards, being final and binding on the parties, could be enforced under the New York Convention, regardless whether a High Court judgment had been entered on the awards); see A. J. van den Berg, op. cit., p. 346-349; the judgment of the Cour d'Appel, Paris, 20 October 1959, referred to by Schlosser in support of his statement that the arbitral award merged into judgment is no longer enforceable as a judgment, does not in any case provide a basis for such a principle; that decision, which, moreover was not given under the New York Convention, merely set aside a decision given at first instance which refused an order for enforcement of a judgment; furthermore, it is regarded as having specifically adopted the solution of granting an option ; see Fouchard, op. cit., p. 540, particularly Note 26.

68 A difficulty which, moreover, seems far from frequent; see on that subject the commentary by Professor G. Recchia on the judgment of the Corte di Cassazione, cited aboye:... the recognition and enforcement of a foreign judgment entered upon an award rather than a foreign award without a judgment (according to the law of the place where it was handed down) is very unusual in Italy, particularly after Italy's adherence to the New York Convention of 1958. ... In fact, this is a unique case.

69 Sec A. J. van den Berg, op. cit., p. 20, regarding the New York Convention.

70 Mayer, op. cit., pp. 360-361.

71 With regard to this provision, see in particular Van Houtxe, La loi belge du 17 mars 1985 sur l'arbitrage international, Rev. arb., 1986, p. 29-41; Vanderelst, Increasing the Appeal of Belgium as an International Arbitration Forum, The Belgian Law of March 27, 1985, concerning the annulment of arbitral awards, Journal of International Arbitration, 1986, p. 77.

72 A solution which the New York Convention did not adopt since there is no obligation to refuse recognition and enforcement of an award annulled in the State where it was made; what is involved is an entidement which does not, according to Article VII of the New York Convention, exclude the application of national laws allowing reliance on the award despite its annulment; thus, according to the French Cour de Cassation, the court may not withhold an order for enforcement where the national law thereof grants authority therefor (Pabalk Norsolor, 9 October 1984; Rev. arb., 1985, p. 431, note by Goldenau; D. 1985, p. 101, note by Robert).

73 Mayer, op. cit., p. 358-359.

74 A. J. van den Berg, op. cit., p. 30.

75 Kayc, op. cit., p. 149-150.

76 Mustiţi and Boyd, op. cit., p. 409.

77 Ibid.

78 Kaye, op. cit., p. 189, note 412.

79 Above.

80 Gothot and Holleaux, op. cil., p. 127, paragraph 225.

81 See in particular Gaillard, E. Les manoeuvres dilatoires des parties et des arbitres dan l'arbitrage commercial international, Rev. ark, 1990, No 4, p. 759.

82 At least the civil law legal systems; English laws shows considerable reticence regarding competence/competence of the kind embodied in the continental systems; on this point, see in particular E. Gaillard, op. cit., particularly at p. 776.

83 With respect to the extent to which a national court called on to appoint an arbitrator may verify the existence or otherwise of an arbitration agreement, deuils are given of the different national approaches in Gaillard, op. cit., particularly at pp. 778-779; that author appears to consider that the approach adopted in Netherlands law (Article 1027(4) of the Code of Civil Procedure), according to which the President or the third party shall appoint the arbitrator or arbitrators without regard to the validity of the arbitration agreement, is too rigorously favourable to competence/competence; he expresses his preference for the compromise solutions adopted in the new Swiss law (the court shall comply with the request for appointment made to it unless a summary examination shows that no arbitration agreement exists between the parties); compare Article 12.5 of the Portuguese Law of 1986 and Article 1444(3) of the new French Code of Civil Procedure, which provides that the judge called on to appoint the arbitrator or arbitrators may determine that the arbitration clause is manifestly void and may declare that no appointment should be made.

84 Case 145/86 Hoffman v Krief [1988] ECR 645 (conflict between a judgment granting alimony, covered by the Convention, and a judgment decreeing divorce, not covered by the Convention).

85 The recognition and enforcement of that judgment might, moreover, lead to a decision on the question, which I have considered on several occasions in this opinion, whether the Convention is applicable to a judgment on the substance of the case given despite the existence of an arbitration agreement which the court in the State where enforcement was sought considered to be valid.

86 Schlosser, P. Conflits entre jugement judiciare et arbitrage, Rev. arb., 1981, No 3, p. 371.