1.

Slightly under two decades ago, in November 2002, the M/T Prestige (‘the vessel’), a single-hull oil tanker registered in the Bahamas, broke into two sections and sank off the coast of Galicia (Spain). At the time the vessel was carrying 70000 tonnes of heavy fuel oil and the resulting oil spill caused significant damage to beaches, towns and villages along the northern coastline of Spain and the western coastline of France. As explained in points 13 to 26 of the present Opinion, the sinking of the vessel generated a lengthy dispute between its insurers and the Spanish State pursued by way of two different procedures in two Member States. It resulted in two judgments: one delivered by the Audiencia Provincial de La Coruña (Provincial Court, A Coruña, Spain), the other handed down by the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom). The Spanish State ultimately sought to have the judgment of the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) recognised by the courts of England & Wales. In the last days of the transitional period after the withdrawal of the United Kingdom from the European Union, the High Court of Justice (England & Wales) made a reference for preliminary ruling seeking an interpretation by the Court of Justice of Article 1(2)(d) and Article 34(1) and (3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ( 2 )

2.

Article I(1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on 10 June 1958 ( 3 ) (‘the 1958 New York Convention’), provides:

‘This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.’

3.

Article III of the 1958 New York Convention states:

‘Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.’

4.

Article 1(1) of Regulation No 44/2001 provides that it shall apply in civil and commercial matters whatever the nature of the court or tribunal. By Article 1(2)(d) thereof, it shall not apply to arbitration.

5.

Pursuant to Article 32 of Regulation No 44/2001, ‘… “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’.

6.

Article 33 of Regulation No 44/2001 states:

‘1.   A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2.   Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.

3.   If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.’

7.

Under Article 34 of Regulation No 44/2001:

‘A judgment shall not be recognised:

…

8.

Article 71(1) of Regulation No 44/2001 provides that it shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.

9.

Since the terms in which Article 1(2)(d) of Regulation No 44/2001 are expressed have not changed since the entry into force of the Brussels Convention, recital 12 of Regulation No 1215/2012 appears to be relevant in assessing the scope of the exception provided for therein. ( 4 ) That recital reads as follows:

‘This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law.

A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question.

On the other hand, where a court of a Member State, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the [1958 New York Convention], which takes precedence over this Regulation.

This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award.’

10.

Section 66 of the Arbitration Act 1996, ( 5 ) entitled ‘Enforcement of the award’, provides that:

11.

Section 73 of the Arbitration Act 1996, entitled ‘Loss of right to object’, provides:

12.

Article 117 of Ley Orgánica 10/1995 del Código Penal (Organic Law 10/1995 on the Criminal Code) of 23 November 1995 ( 6 ) provides that ‘insurers which have assumed the risk of financial liabilities arising from the use or exploitation of any property, industry, undertaking or activity, in the case where the event constituting the risk insured materialises as a result of a circumstance provided for in this Code, shall incur direct civil liability up to the limit of the compensation laid down by law or by agreement, without prejudice to the right of recovery against the person concerned’.

13.

At the time the vessel sank, its owners (‘the owners’) had Protection & Indemnity (‘P&I’) insurance with The London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Club’), ( 7 ) pursuant to an insurance contract concluded by a certificate of entry dated 20 February 2002 (‘the insurance contract’). By that contract, the Club agreed to provide P&I cover for the owners in respect of, inter alia, any one occurrence of liability for pollution up to a maximum aggregate amount of 1 billion United States dollars (USD). The insurance contract was subject to the Club’s Rules, that is, the standard terms and conditions of the insurance policy incorporated into the certificate of entry. Rule 3, entitled ‘Right to recover’, provided for a ‘pay to be paid’ clause ( 8 ) in the terms following:

…’

14.

Rule 43 of the Club’s Rules, entitled ‘Jurisdiction and law’, contained an arbitration clause whereby ‘if any difference or dispute shall arise between a Member and the Association’, ‘such difference or dispute’ was to be referred to arbitration in London (United Kingdom) before a sole legal arbitrator subject to English law and the Arbitration Act 1996.

15.

In late 2002, criminal proceedings were initiated in Spain against, inter alia, the vessel’s master, chief officer and chief engineer.

16.

In or about June 2010, at the conclusion of the investigatory stage of the criminal proceedings, several legal entities, including the Spanish State, brought civil claims against a number of defendants, including the Club as the owners’ liability insurer under the insurance contract pursuant to a right of direct action under Article 117 of the Spanish Criminal Code. The Club did not take part in the Spanish proceedings.

17.

On 16 January 2012, the Club initiated arbitration proceedings in London, whereby it sought declarations to the effect that, pursuant to the arbitration clause in the insurance contract, the Spanish State was bound to pursue its claims under Article 117 of the Spanish Criminal Code in London and that the Club was not liable to the Spanish State in respect of such claims as a matter of English law and/or under that contract. The Spanish State did not participate in the arbitration proceedings. ( 9 )

18.

By an award delivered on 13 February 2013 (‘the Award’), the arbitral tribunal held that, since the claims in question were of a contractual nature under English conflict of law rules, English law applied to the contract. The Spanish State could not thus benefit from the owners’ contractual rights without complying with both the arbitration clause and the ‘pay to be paid’ clause. Moreover the Spanish State ought to have initiated arbitration proceedings in London to recover payment from the Club. The Award also declared that, in the absence of prior payment of the insured liability by the owners, the Club was not liable to the Spanish State in respect of the claims. In any event, the Club’s liability did not exceed USD 1 billion.

19.

In March 2013, the Club applied to the referring court under section 66(1) and (2) of the Arbitration Act 1996 for leave to enforce the Award in the jurisdiction in the same manner as a judgment or order and for a judgment to be entered in the terms of the Award. The Spanish State opposed that application. It sought orders to set aside the Award and/or to declare the Award of no effect, pursuant to sections 67 and/or 72 of the Arbitration Act 1996. Those sections provide that an English arbitral award may be challenged on the grounds, inter alia, that the tribunal lacked substantive jurisdiction and that the relevant dispute could not properly be submitted to arbitration. The Spanish State also argued that the referring court should decline to exercise its discretion to enter judgment.

20.

Following a seven-day trial in the course of which factual evidence together with expert evidence of Spanish law was heard, on 22 October 2013 the referring court delivered judgment. It ordered that the Spanish State’s applications be dismissed, granted the Club, pursuant to section 66(1) of the Arbitration Act 1996, leave to enforce the Award and declared that, pursuant to section 66(2) of that act, judgment was to be entered against the Spanish State in the terms of the Award. On the same date it delivered a separate formal judgment which stated that ‘pursuant to section 66(2) of the Arbitration Act 1996, judgment is entered against the [Spanish State] in the terms of the Award’. ( 10 )

21.

The Spanish State appealed against the section 66 judgment to the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). By judgment of 1 April 2015, that court dismissed the appeal.

22.

On 13 November 2013, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) gave judgment in the Spanish proceedings. It made no finding as to the civil liability of the owners or of the Club. Various parties appealed against that judgment to the Tribunal Supremo (Supreme Court, Spain). By judgment of 14 January 2016, that court held, inter alia, that the master and the owners were liable in respect of the civil claims and that the Club was directly liable pursuant to Article 117 of the Spanish Criminal Code, subject to the global limit of liability of USD 1 billion. It remitted the matter to the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) to determine the quantum of the respective liabilities of the defendants to the Spanish proceedings. By judgment of 15 November 2017 (rectified on 11 January 2018), that court held that, as a result of the accident, the master, the owners and the Club were liable to over 200 separate parties (including the Spanish State) in sums in excess of EUR 1.6 billion, subject, in the case of the Club, to the global limit of liability of USD 1 billion. Various parties appealed against that judgment before the Tribunal Supremo (Supreme Court), which, by judgment of 19 December 2018 (amended on 21 January 2019), upheld it, subject to a limited number of variations.

23.

On 1 March 2019, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) issued an execution order setting out the amounts that each of the claimants, including the Spanish State, were entitled to enforce against the respective defendants, including the Club (‘the Spanish judgment’).

24.

On 25 March 2019, the Spanish State applied to the High Court of Justice (England & Wales) to have the Spanish judgment recognised under Article 33 of Regulation No 44/2001. That court acceded to that application by order of 28 May 2019 (‘the registration order’). ( 11 )

25.

On 26 June 2019, the Club lodged an appeal against the registration order under Article 43 of Regulation No 44/2001. It relied on two grounds. First, it argued that, pursuant to Article 34(3) of Regulation No 44/2001, the Spanish judgment was irreconcilable with the section 66 judgment which the Court of Appeal (England & Wales) (Civil Division) had upheld on 1 April 2015. Second, by reference to Article 34(1) of Regulation No 44/2001, it submitted that recognition or enforcement of the Spanish judgment was manifestly contrary to English public policy. The Spanish State contested the Club’s appeal. It asked the referring court to refer six questions for a preliminary ruling on the interpretation of Regulation No 44/2001.

26.

In those circumstances, on 22 December 2020, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:

27.

The Club, the German, Spanish, French and Polish Governments, the United Kingdom, the Swiss Confederation and the European Commission submitted written observations.

28.

At the hearing on 31 January 2022, the Club, the Spanish, French and Polish Governments, the United Kingdom and the Commission presented oral submissions and responded to questions the Court addressed to them.

29.

On 31 January 2020, the United Kingdom withdrew from the European Union. According to Article 86(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, ( 12 ) the Court retains jurisdiction to give preliminary rulings on requests from courts and tribunals of the United Kingdom made before the end of the transition period, defined by Article 126 thereof as 31 December 2020. In addition, under Article 89(1) of that agreement, the judgment of the Court, whether handed down before the end of that transition period or at a future date, has binding force in its entirety on and in the United Kingdom. Since the present request for a preliminary ruling was made on 22 December 2020, the Court has jurisdiction to rule on it and the referring court will be bound by the judgment to be delivered by the Court.

30.

By way of preliminary, I would make two observations.

31.

First, at the hearing some of the parties sought to call into question issues that have already been determined by the referring court. Those include findings that the Spanish State’s claims against the Club under Article 117 of the Spanish Criminal Code were to be characterised under English law as claims to enforce obligations under that provision, rather than independent rights derived from Spanish statutes; that those English law obligations could be enforced only in accordance with their terms, that is, by way of arbitration and subject to the ‘pay to be paid clause’; and that the claims were capable of being adjudicated upon by way of arbitration.

32.

In proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. ( 13 ) It is not for the Court to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of them is correct. ( 14 ) It follows that, in the exercise of the jurisdiction conferred upon it, the Court cannot entertain the arguments described in the preceding point of the present Opinion.

33.

Second, the French Government submits that the Spanish judgment and the section 66 judgment are not irreconcilable. The fact that a national court has jurisdiction does not necessarily preclude, in absolute terms and in particular in the context of an action for damages, another national court, or an arbitration tribunal, from asserting that it has jurisdiction and vice versa. It observes that the Club did not consider it necessary to participate in the Spanish proceedings and that, under Spanish law or international law, a court does not have to raise of its own motion an objection of a lack of jurisdiction based on the existence of an arbitration clause. It was thus manifestly in view of the fact that its jurisdiction had not been challenged by reason of the existence of such a clause that the Spanish court accepted jurisdiction over the dispute. That the section 66 judgment finds that the arbitral tribunal seised by the Club has jurisdiction on the basis of an arbitration clause in the insurance contract thus does not make it irreconcilable with the Spanish judgment.

34.

The French Government also submits that the fact that the arbitral tribunal held that the ‘pay to be paid’ clause was enforceable against third parties having suffered damage caused by the insured in the absence of prior payment does not preclude a national court from not applying that clause, all the more so where – as in this case – the interested party neither invoked it nor relied upon the absence of any prior payment before that court. A party cannot assert that a judgment is irreconcilable with a judgment made in another Member State due to the failure of that party to appear before the court that delivered the second judgment, the recognition of which is sought in the Member State in which the first judgment was delivered.

35.

The French Government’s arguments are incorrect for the following two reasons.

36.

First, as the United Kingdom observed at the hearing and as the French Government itself points out in its written observations, the questions referred for a preliminary ruling are based on the premiss that the Spanish judgment and the section 66 judgment are irreconcilable. What is more, as the United Kingdom also observed at the hearing, it is apparent from the referring court’s judgment of 18 December 2020, in which it decided on the questions to be submitted for a preliminary ruling, that it refused the Spanish State’s express invitation to refer any question of irreconcilability to the Court. It is sufficient to recall that it is for the referring court alone to determine and formulate the questions to be referred for a preliminary ruling concerning the interpretation of EU law which are necessary in order to resolve the dispute in the main proceedings. ( 15 ) Whilst the referring court is at liberty to request the parties before it to suggest suitable wording for the question to be referred, it is for that court alone to decide both its form and its content. ( 16 ) The Court’s case-law also makes it clear that, where the referring court expressly states in its order for reference that it did not consider it necessary to ask a question or if it implicitly refuses to submit to the Court a question raised by one of the parties, the Court may not answer that question or take it into account in the reference for a preliminary ruling. ( 17 ) In the light of the foregoing, the French Government’s arguments concerning the issue of irreconcilability are patently inadmissible.

37.

Second, those arguments are, in any event, ineffective. In Hoffmann, the Court ruled that the irreconcilability of two judgments is to be ascertained by asking whether they entail mutually exclusive legal consequences. ( 18 ) Irreconcilability is, thus, determined by reference to the effects that judgments produce; it is neither concerned with the legal reasoning on which they are based nor with the procedural steps that led to their adoption. ( 19 ) Nor does the irreconcilability of judgments depend upon the parties’ conduct, as the French Government suggests. In the present case, the judgments at issue have diametrically opposed legal consequences, at least as concerns the Club: whilst the Spanish judgment held the Club liable, the section 66 judgment declared that the Club was not liable by reason of the ‘pay to be paid’ clause.

38.

By its first question, the referring court seeks to ascertain whether a judgment entered in the terms of an award under section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of a Member State in which recognition is sought for the purposes of Article 34(3) of Regulation No 44/2001. By its second question, it asks whether the fact that such a judgment falls outside of the material scope of Regulation No 44/2001 by reason of Article 1(2)(d) thereof precludes it from constituting such a relevant ‘judgment’ for the purposes of its Article 34(3).

39.

Since those two questions are closely linked, I propose to examine them together.

40.

By way of preliminary observations, I would dismiss the United Kingdom’s suggestion that the Court decline to answer the first two questions since they ‘essentially concern a conflict as to whether the dispute is resolved exhaustively by arbitration or not’ and that, consequently, their subject matter falls within the scope of the exclusion set out in Article 1(2)(d). First, the two questions seek the interpretation of Article 1(2)(d), Article 32 and Article 34(3) of Regulation No 44/2001. Until that interpretation has been given, it not possible to say whether the underlying dispute between the parties has been resolved exhaustively by arbitration. The United Kingdom’s objection under this rubric is thus a case of putting the cart before the horse. Second, in Owens Bank, ( 20 ) of the three questions referred to the Court, the first two related to the application of the Brussels Convention to proceedings in Contracting States concerning the recognition and enforcement of judgments given in non-Contracting States, whilst the third question sought to ascertain the principles of Community law that applied to lis pendens. The Court answered the two first questions in the negative, in view of which response it considered that the third question did not require an answer. It follows that, contrary to what the United Kingdom submits, the Court did not decline to answer the questions referred to it in Owens Bank on the ground that they fell outside the scope of the Brussels Convention.

41.

The reasons for – and the scope of – the exclusion of arbitration from the scope of Regulation No 44/2001 are contained in the travaux préparatoires for the earlier version of Article 1(2)(d) of Regulation No 44/2001 found in the Brussels Convention, ( 21 ) namely Article 1(2)(4), in the so-called ‘Heidelberg Report’, ( 22 ) in certain Opinions delivered by Advocates General, and in several Court judgments.

42.

It is apparent from the Jenard Report ( 23 ) and the Evrigenis and Kerameus Report ( 24 ) that arbitration was excluded from the scope of the Brussels Convention because of the existence of many multilateral international agreements on arbitration. The Schlosser Report ( 25 ) refers in particular to the 1958 New York Convention, to which all Member States at the time, with the exception of Ireland and Luxembourg, were parties. Similarly, the Heidelberg Report ( 26 ) notes that, historically, the exclusion is explained by the relationship between the ‘Brussels regime’ and the 1958 New York Convention. That report states that, ‘when the [Brussels] Convention was negotiated in the 1960s, there was a large consensus that the recognition of arbitral agreements and awards worked efficiently under the 1958 New York Convention and, accordingly, arbitration should not be addressed by the European instrument’ and that, ‘in addition to this, the [Council of Europe] was elaborating a parallel instrument on arbitration at that time which finally proved to be unsuccessful’. ( 27 ) That the Brussels Convention included the arbitration exception in order to comply with international agreements already existing in that area, notably the 1958 New York Convention, was confirmed by the Court in Rich, ( 28 ) by Advocate General Léger in his Opinion in Van Uden ( 29 ) and by Advocate General Kokott in her Opinion in Allianz and Generali Assicurazioni Generali. ( 30 )

43.

The Brussels Convention and its successor, Regulation No 44/2001, were thus intended not to affect the operation of the 1958 New York Convention in the Member States. ( 31 ) In particular, neither of those instruments address proceedings for the recognition and enforcement of arbitral awards, which are governed by the national and international law applicable in the Member State where such recognition and enforcement is sought.

44.

As the Commission rightly points out, the 1958 New York Convention does not come into play in the proceedings from which this reference for preliminary ruling was made, for the reason that those proceedings do not involve, as Article I(1) of that convention requires, the recognition and enforcement of an arbitral award in a State other than that in which that award was made. Moreover, the Spanish judgment clearly falls within the scope of Regulation No 44/2001, the provisions of which thus govern its recognition and enforcement in another Member State.

45.

Whilst the text of Article 1(2)(d) of Regulation No 44/2001 (and of its predecessor, Article 1(2)(4) of the Brussels Convention) gives no clear indication as to the extent to which arbitration is excluded from its scope, it is well established that the exclusion is ‘comprehensive’ ( 32 ) and that it is to be interpreted broadly.

46.

It is thus clear from the Jenard Report ( 33 ) that the arbitration exclusion is not limited to proceedings before an arbitrator, but includes court proceedings relating to arbitration. The Schlosser Report states that the Brussels Convention does not cover court proceedings ancillary to arbitration proceedings ( 34 ) nor judgments ruling on the validity of an arbitration agreement and, where appropriate, ordering parties not to continue arbitration proceedings. ( 35 ) That report also indicates that the Brussels Convention does not apply to proceedings and decisions concerning applications for the revocation, amendment, recognition and enforcement of arbitral awards, or to ‘court decisions incorporating arbitration awards – a common method of recognition under United Kingdom law’. ( 36 ) Similarly, the Evrigenis and Kerameus Report ( 37 ) states that the Brussels Convention does not cover proceedings that are directly concerned with arbitration as the principal issue, for example cases where the court is instrumental in setting up the arbitration body, judicial annulment or recognition of the validity or the defectiveness of an arbitration award.

47.

In line with the foregoing, in Rich, which concerned the appointment of an arbitrator by a national court, the Court held that ‘the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts’. ( 38 ) It further held that, in order to determine whether a dispute falls within the scope of the Brussels Convention, reference must be made exclusively to the subject matter of that dispute. Therefore, if, by virtue of its subject matter, a dispute falls outside the scope of the Brussels Convention, the existence of a preliminary issue that the court must resolve in order to determine the dispute cannot, whatever that issue may be, justify the application of that convention. ( 39 ) In Van Uden, which concerned an application for interim relief relating to the payment of debts arising under a contract containing an arbitration clause, the Court held that provisional measures are not in principle ancillary to arbitration proceedings but are ordered in parallel thereto as measures of support, that they concern not arbitration as such but the protection of a wide variety of rights, and that their place in the scope of the Brussels Convention is thus to be determined not by their own nature but by the nature of the rights that they serve to protect. The Court therefore concluded that, where the subject matter of an application for provisional measures relates to a question that falls within the material scope of the Brussels Convention, the latter will apply. ( 40 ) Finally, in Gazprom, ( 41 ) the Court was called upon to give a ruling on whether Regulation No 44/2001 precludes a Member State court from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award issued by an arbitral tribunal in another Member State that prohibited a party to arbitration proceedings from bringing certain claims before a court of the first Member State. The Court answered that question in the negative, pointing out that Regulation No 44/2001 does not govern the recognition and enforcement, in one Member State, of an award issued by an arbitral tribunal in another Member State.

48.

In my view, it is clear from the foregoing that a judgment entered in the terms of an award, such as a judgment under section 66(2) of the Arbitration Act 1996, is caught by the arbitration exclusion provided for in Article 1(2)(d) of Regulation No 44/2001. It moreover appears that the referring court and all of the parties before the Court agree with that interpretation.

49.

As the Club, the United Kingdom and the Commission rightly submit, the exclusion of arbitration from the material scope of Regulation No 44/2001 has the effect, in particular, of making it impossible to use that regulation to enforce an arbitral award in another Member State by first turning it into a judgment and then asking the courts of the other Member State to enforce that judgment under Chapter III thereof. ( 42 )

50.

That is not, however, the scenario here. This is not an attempt to have an English judgment made under section 66 of the Arbitration Act 1996 recognised or enforced in another Member State. The case at hand concerns the effect of such a judgment in circumstances where it is incompatible with a judgment from another Member State the recognition and enforcement of which is sought in England and Wales.

51.

The question then arises as to whether that scenario comes within the scope of that envisaged by Article 34(3) of Regulation No 44/2001.

52.

Like the Club, the United Kingdom and the Commission, I consider that, for the following three reasons, a judgment made under section 66 of the Arbitration Act 1996 plainly qualifies as a ‘judgment’ in the requested State for the purposes of Article 34(3) of Regulation No 44/2001.

53.

First, Article 32 of Regulation No 44/2001 defines the concept of a ‘judgment’ in very broad terms. ( 43 ) That definition applies to all of the provisions of that regulation where that concept appears, ( 44 ) including Article 34(3).

54.

Second, in paragraph 17 of its judgment in Solo Kleinmotoren, the Court ruled that, in order to be a ‘judgment’ for the purposes of the Brussels Convention, ‘the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties’. ( 45 )

55.

A judgment made pursuant to section 66(2) of the Arbitration Act 1996 meets those conditions in full. It is apparent from the description in the order for reference of the process by which the English courts hand down a judgment to give effect to an arbitral award pursuant to section 66 of the Arbitration Act 1996 that it does not consist in the automatic approval of the award or amount to an exercise in rubber-stamping. The court hears argument and makes a judicial determination on a series of substantive issues, such as the jurisdiction of the arbitrator, whether it is in the interests of justice to enter the judgment (considerations of practicality and usefulness in granting the order), issues of public policy and the interests of third parties. To decide those issues the court can order the investigation and trial of various factual and legal issues. ( 46 ) It follows that, as the order for reference indicates, a court hearing a section 66 application may determine important substantive issues as between the parties, even though they are not coextensive with the questions or issues determined by the arbitral tribunal and encompassed by the award.

56.

It also appears that, as the United Kingdom and the Commission correctly point out in their written observations, the authority to decide whether to enter a judgment in the terms of an arbitral award does not derive from the award or the parties’ agreement to submit the dispute to arbitration, but from the jurisdiction conferred on the English court for that purpose, which encompasses the resolution of substantive issues between the parties. Contrary to the assertions of the German and French Governments, the English court is not in the same position as a court ratifying a settlement concluded by the parties, as in the circumstances that gave rise to the judgment in Solo Kleinmotoren, where the Court found that ‘settlements in court are essentially contractual in that their terms depend first and foremost on the parties’ intention’. ( 47 ) As the Commission’s written observations rightly submit, an arbitral award is not the manifestation of an agreement between the parties on the issues it covers but is rather the adjudication of a dispute over those issues.

57.

Third, I agree with the written submissions of the Club and of the United Kingdom when they contend that the fact that a judgment adopted pursuant to section 66 of the Arbitration Act 1996 does not address every issue before the arbitral tribunal does not prevent it from being a ‘judgment’ for the purposes of Article 34(3) of Regulation No 44/2001. ( 48 ) In particular, there is no requirement that a court must determine all of the substantive elements of a dispute in order to deliver a judgment that satisfies the purposes of that provision. By way of example, in Gambazzi, the Court held that for decisions to qualify as ‘judgments’ it was sufficient that they are ‘judicial decisions which … have been, or have been capable of being, the subject in [the] State of origin and under various procedures, of an inquiry in adversarial proceedings’. ( 49 ) In that case, a default judgment an English court delivered when the defendant had been excluded from the proceedings by reason of his failure to comply with a court order was held to be a ‘judgment’, notwithstanding that the court had not examined the substance of the applicant’s claims but had limited its consideration to whether the requirements for issuing a default judgment had been met.

58.

It is true that paragraph 17 of the judgment in Solo Kleinmotoren ( 50 ) refers to ‘the’ issues between the parties. However, it is apparent from paragraph 21 of that judgment, which refers to ‘a matter at issue’ between the parties, and from the version of paragraph 17 in the language of the proceedings, that is to say German, that the use of the definite article in the English version was not intended to carry any weight. ( 51 )

59.

I also share the view of the Club, the German Government, ( 52 ) the United Kingdom and the Commission that Article 34(3) of Regulation No 44/2001 applies to any irreconcilable judgment given in a dispute between the same parties in the Member State in which recognition is sought, regardless of whether its subject matter comes within the material scope of Regulation No 44/2001. In other words, the exclusion of arbitration under Article 1(2)(d) thereof does not apply so as to exclude such judgments from coming within the ambit of Article 34(3) of Regulation No 44/2001.

60.

Article 1(2) of Regulation No 44/2001 is not determinative as to whether a judgment under Article 34(3) thereof comes within the scope of the regulation for the simple reason that those provisions were enacted for different purposes and pursue different objectives.

61.

As regards the purpose and objectives of Article 1(2) of Regulation No 44/2001, once a ‘judgment’, as defined by Article 32 thereof, comes within the material scope of that regulation it can benefit from mutual recognition and can thus ‘travel’. To adopt the description upon which the Club relies: ‘Art[icle] 1 addresses the application of the regulation to the proceedings, which in the case of an application for enforcement within Chapter III is determined by the subject matter of the judgment to be enforced (here, the Spanish judgment)’, and ‘once the regulation is found to apply by reference to those proceedings, Art[icle] 1 has no further role to play’.

62.

As the Club, the German Government, the United Kingdom and the Commission point out, Article 34(3) of Regulation No 44/2001 serves a different purpose and has different objectives, namely to protect the integrity of a Member State’s internal legal order and to ensure that its rule of law is not disturbed by being required to recognise a foreign judgment that is incompatible with a decision of its own courts. The Jenard Report identified that fundamental principle in the Brussels Convention. ( 53 ) The Court advanced that principle in support of its reasoning in Solo Kleinmotoren. ( 54 ) The interpretation of Article 34(3) of Regulation No 44/2001 is thus informed by the requirement that the rule of law in the Member State in which recognition is sought ought not to be disturbed. ( 55 )

63.

Since the exclusion of certain matters from the material scope of Regulation No 44/2001 gave rise to the risk of irreconcilable decisions, rules had to be adopted to govern those circumstances. That risk in the field of arbitration is expressly acknowledged in the Opinions of Advocate General Darmon in Rich and Advocate General Kokott in Allianz and Generali Assicurazioni Generali ( 56 ). By virtue of Article 1(2) thereof many important matters are deemed to fall outside the scope of Regulation No 44/2001, including the status or legal capacity of natural persons, wills and succession, bankruptcy, insolvency and social security. I therefore concur with the Club, the German Government, the United Kingdom and the Commission in their submissions to the effect that the rule of law and the internal legal order of Member States would be seriously disturbed were their courts obliged to ignore judgments on all of those matters, delivered within their jurisdiction by other courts of that same Member State, and which may have acquired the force of res judicata, in favour of a – potentially subsequent – judgment emanating from a court of another Member State adjudicating upon the same issue. Absent clear provisions to the contrary, it is reasonable to conclude the EU legislature did not intend to enact provisions that would have such a disturbing impact on the rule of law in the Member States.

64.

The Court’s judgment in Hoffmann ( 57 ) also makes it clear that a judgment handed down by a court of the State in which the recognition of a foreign judgment is sought should be afforded due deference, notwithstanding that the subject matter of that first judgment falls outside the scope of Regulation No 44/2001. In Hoffmann, a German judgment ordered a husband to make maintenance payments to his wife, from whom he was separated in Germany. He thereafter obtained a divorce decree from a Netherlands court, which was not recognised in Germany. At the material time, the scope of the Brussels Convention excluded the status of natural persons but included spousal maintenance payments. In the context of proceedings to enforce the German judgment in the Netherlands, the Court was asked whether enforcement should be refused under Article 27(3) of the Brussels Convention ( 58 ) on the ground that it was irreconcilable with the Netherlands divorce decree. The Court held that the Netherlands court should refuse to enforce the German order. It observed, inter alia, that ‘the judgments at issue have legal consequences which are mutually exclusive’ and that ‘the foreign judgment, which necessarily presupposes the existence of the matrimonial relationship, would have to be enforced although that relationship has been dissolved by a judgment given in a dispute between the same parties in the State in which enforcement is sought’. ( 59 )

65.

I agree with the Commission that the position the Court adopted in Hoffmann ( 60 ) meets the requirements of the system of jurisdiction established by Regulation No 44/2001 by facilitating the validity of judgments in the jurisdictions where they are delivered. The German judgment and the Netherlands divorce decree could not exist in the same legal system. For the Brussels Convention to have permitted such a state of affairs would have undermined the rule of law in the Netherlands. ( 61 ) Since, for the purposes of this analysis, there is no reason to differentiate between the various exceptions contained in Article 1(2) of Regulation No 44/2001, it is moreover irrelevant that Hoffmann does not concern Article 1(2)(d).

66.

Finally, I am also convinced by the argument put forward by the Club, the United Kingdom and the Commission that an interpretation of Article 34(3) of Regulation No 44/2001, to the effect that national court decisions giving effect to arbitral awards, such as the section 66(2) judgment at issue, would fall outside the scope of that provision, gives rise to at least two anomalies.

67.

First, pursuant to Article 34(4) of Regulation No 44/2001, an earlier judgment given in a third State, which by definition falls outside the scope of that regulation, may preclude recognition of a later inconsistent judgment given in a Member State other than that in which recognition is sought. On the other hand, an inconsistent judgment delivered in the Member State in which recognition is sought, the subject matter of which would be deemed to fall outside of the scope of Regulation No 44/2001, would not have that effect. By way of example, a judgment delivered by a court in Bolivia, a third State, could prevent a judgment delivered by a court in Ireland, a Member State, from being recognised in France, another Member State, whilst a judgment delivered by a French court could not be relied upon to prevent the Irish judgment from being recognised in France.

68.

Second, a non-domestic arbitral award would be in a superior position in the legal order of the Member State in which recognition is sought as compared with a domestic arbitral award that had been enforced by that Member State’s courts. Where a Member State has recognised a non-domestic arbitral award under the 1958 New York Convention, it cannot subsequently invoke Regulation No 44/2001 in order to enforce a Member State judgment that contradicts that non-domestic arbitral award. A domestic arbitral award enforced by way of a judgment in the Member State in which recognition is sought would be in a worse position since it would neither enjoy the status of a 1958 New York Convention ( 62 ) award, nor be entitled to protection under Article 34(3) of Regulation No 44/2001. In the case at issue, should the section 66 judgment not preclude the enforcement of the Spanish judgment in England, the Award would be deprived of legal effects in the jurisdiction of the seat of the arbitration but could, nevertheless, be enforced in another Member State in preference to the Spanish judgment. Take the example that the Commission gave in its written observations. If the French courts consider that the 1958 New York Convention requires them to recognise the Award, Regulation No 44/2001 would not prevent enforcement of the Award in France, and the French courts would be under no obligation to recognise the Spanish judgment to the extent to which it is irreconcilable with the Award.

69.

In conclusion, I agree with the Club, the United Kingdom and the Commission that a judgment made under section 66(2) of the Arbitration Act 1996 is capable of constituting a ‘judgment given … in the Member State in which recognition is sought’ for the purposes of Article 34(3) of Regulation No 44/2001, irrespective of whether it falls outside of the material scope of that regulation.

70.

I therefore propose that the Court should answer the first and second questions by holding that a judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Regulation No 44/2001, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.

71.

By its third question, the referring court asks whether, in the event the Court finds that Article 34(3) of Regulation No 44/2001 does not apply, it could rely on Article 34(1) thereof to refuse to recognise or to enforce a judgment of another Member State by reason of the existence of a prior domestic arbitral award or judgment entered in the terms of that award made by a court of the Member State in which recognition is sought. In particular, the referring court asks whether, in such circumstances, it could have recourse to Article 34(1) or whether Article 34(3) and (4) exhausts the grounds upon which recognition or enforcement may be refused by reason of res judicata and/or irreconcilability.

72.

In view of the answer that I propose the Court should give to the first two questions, which disposes of the issues raised in the case in the main proceedings and enables the referring court to resolve the conflict between the section 66 judgment and the Spanish judgment, I suggest that there is no need to respond to the third question. However, in the interest of completeness and in view of the possibility that the Court might take a different view as regards the proposed answer to first two questions, I will address the third question briefly.

73.

According to the Court’s case-law, Article 34(1) of Regulation No 44/2001 must be interpreted strictly, inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation. It may be relied upon only in exceptional cases. ( 63 ) Whilst by virtue of the proviso in Article 34(1) of Regulation No 44/2001, the Member States are in principle free to determine the requirements of public policy, that regulation defines the limits of that concept. ( 64 ) Consequently, while it is not for the Court to define the content of a Member State’s public policy, it is nonetheless required to review the limits within which the courts of that Member State may have recourse thereto in order to refuse to recognise a judgment emanating from a court in another Member State. ( 65 )

74.

It is also apparent from the Court’s case-law that reliance upon the concept of public policy is envisaged only where recognition or enforcement of the judgment given in another Member State would constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State in which recognition is sought or of a right recognised as fundamental within that legal order. ( 66 ) In Hoffmann, ( 67 ) the Court held that reliance upon the concept of public policy, which is unavailable save in exceptional cases, is in any event precluded when the issue concerns the compatibility of a foreign judgment with a national judgment. The issue thus falls to be resolved on the basis of Article 27(3) of the Brussels Convention. ( 68 )

75.

Reference may also be made to the Jenard Report, ( 69 ) which observed that ‘the case where a foreign judgment is irreconcilable with a judgment given by a national court is, in the existing conventions, either treated as a matter of public policy … or is regulated by a special provision’. The report states that ‘to treat this as a matter of public policy would involve the danger that the concept of public policy would be interpreted too widely’.

76.

Moreover, as Advocate General Wahl observed in his Opinion in Salzgitter Mannesmann Handel, Article 34(2), (3) and (4) of Regulation No 44/2001 constitutes a lex specialis in relation to Article 34(1), which is of a general nature. To the extent that the other exceptions address the relevant public policy considerations, the latter provision is inapplicable. ( 70 )

77.

I therefore agree with the French Government’s observation that the EU legislature intended to regulate exhaustively the issue of res judicata and/or irreconcilability by means of Article 34(3) and (4) of Regulation No 44/2001, thereby excluding the possibility of recourse to the concept of public policy in that context. It follows that the Court ought not to adopt a broad interpretation of Article 34(1) of Regulation No 44/2001 that would limit the effectiveness of paragraphs 3 and 4 thereof or facilitate any circumvention of the conditions laid down in those paragraphs.

78.

Should the Court find that Article 34(3) of Regulation No 44/2001 does not apply to the circumstances of this reference for preliminary ruling, I therefore suggest that it hold that the referring court cannot rely on Article 34(1) thereof to refuse to recognise or to enforce a judgment of another Member State by reason of the existence of a prior domestic arbitral award or judgment entered in the terms of that award made by a court of the Member State in which recognition is sought and that Article 34(3) and (4) of Regulation No 44/2001 exhausts the grounds upon which recognition or enforcement may be refused by reason of res judicata and/or irreconcilability.

79.

In the light of the foregoing considerations I propose that the Court answer the questions referred for a preliminary ruling by the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom) as follows:

A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.