When is Litigation Arbitration?: A Comment on Marc Rich & Co. A.G. v. Societa Italiana Impanti P.A.* – Vol. 2 No. 4

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AuthorMichael John Volkovitsch**

Published: December 1991

Categories of Disputes
Commercial Disputes
Enforcement of Arbitral Awards

Description: Marc Rich, the fugitive financier already familiar to students of tax fraud and transnational criminal procedure, has now left his mark on the jurisprudence of international commercial arbitration. Marc Rich & Co. A.G. v Societa Italiana Impianti P.A. presented the European Court of Justice (“ECJ”) with-.an important opportunity to explore a question of primary importance to arbitration in Europe — the scope of the “arbitration exception” to the 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters,4 the agreement by which the Member States of the European Community (“EC”) have sought to delineate the valid bases of personal jurisdiction in transnational disputes and facilitate the enforcement of judgments throughout the Community.

In holding that the Convention does not apply to litigation before Member State courts concerning the appointment of an arbitrator, even if the existence or validity of an agreement to arbitrate is a preliminary issue in that litigation, the ECJ significantly enhanced the independence and viability of international arbitration in Europe. Yet the sparseness of the Court’s opinion renders the analytical underpinnings of its decision somewhat unclear, while its narrow framing of the issue presented leaves important questions unanswered. A complete analysis of the case’s importance requires both a more detailed review of the record before the Court and an examination of the broader issues which it chose not to address.

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*Arbitral & Judicial Decisions
**J.D. Candidate, Columbia University School of Law, 1993.