The Applicability of the Brussels I bis Regulation to Hybrid Dispute Resolution Clauses

The hybrid clause is an optional dispute resolution clause that offers the parties to a contract, for resolving their dispute, an option between state courts and arbitral tribunals. The combination of two different dispute resolution mechanisms, litigation and arbitration, raises the issue of determining the international or regional instruments applicable to this clause, such as Brussels I bis Regulation. As a matter of fact, the Recast of Brussels I Regulation, in line with its predecessors, excludes arbitration from its material scope. Since the hybrid clause contains an option to arbitrate, this exclusion raises the question of the applicability of the Regulation to this form of optional dispute resolution clause.