CYIL 2015

MONIKA FEIGERLOVÁ CYIL 6 ȍ2015Ȏ While the review process was pending, Diag Human sought to enforce the Award under the New York Convention in a number of jurisdictions, including Austria, France, Luxembourg, Switzerland, the United States of America and the United Kingdom. In Austria and France the enforcement proceedings reached their Supreme Courts. On 16 April 2013 the Austrian Oberster Gerichtshof rendered a judgment 7 stating that the Award had not yet become binding upon the parties and therefore was unenforceable within the meaning of Article V(1)(e) of the New York Convention. Similarly, on 5 March 2014 the French Cour de cassation 8 arrived at the same conclusion that the Award was not yet binding as the Czech Republic had exercised its right under the arbitration agreement to require review of the Award by a second arbitral tribunal and on that ground refused to enforce the Award. New York Convention’s enforcement regime The Award was made in the Czech Republic, that is in the territory of a state which is a party to the New York Convention. Diag Human applied for enforcement of the Award as a New York Convention award in signatory countries to that Convention. Before turning to a discussion of the rather unexpected reasoning of the US and English courts’ decisions, it is helpful to briefly recall the basic principles of enforcement adopted in the New York Convention. Under the New York Convention, recognition and enforcement of an arbitral award made in the territory of one contracting state may only be refused by the courts of another contracting state on limited and well-defined grounds. 9 More specifically enforcement may be refused only if one of the grounds listed in Article V(1) is satisfied. Article V(1) sets forth that recognition and enforcement of the award may be refused only if the party resisting enforcement proves: (a) incapacity of a party, or that there was an invalid arbitration agreement under the law to which the parties subjected it, or in the absence of such a choice under the law of the country where the award was made; (b) a party had improper notice or was unable to present its case; (c) the award exceeded the scope of the submission to arbitration; (d) there were defects in the composition of the tribunal or selection procedure; or (e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Further, under Article V(2), a court may decline to enforce an award on its own motion if either the subject matter is not capable of settlement by arbitration

7 Decision of the Austrian Supreme Court (Oberster Gerichtshof) no. 3 Ob 39/13a of 16 April 2013. 8 Decision of the French Supreme Court (Cour de cassation – Première chambre civile) no. 193 of 5 March 2014 (12-29.112). 9 See Van den Berg, A.J.: The NewYork Convention of 1958 , T.M.C. Asser Institute, The Hague, 1981, p. 274.

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