CYIL 2015

MONIKA FEIGERLOVÁ CYIL 6 ȍ2015Ȏ position was that it duly triggered the review process within the stipulated timeframe. As a result, in the view of the Czech Republic the Award was not yet binding and it should not therefore be enforced. Contrarily, Diag Human claimed that the Czech Republic failed to take proper steps to invoke the review process in time and that the The Austrian Supreme Court refused to enforce the Award, finding that “an arbitral award could neither be enforced nor rejected by a national court as long as it can be challenged before an arbitral tribunal of a higher instance”. 13 The court found that the review process agreed upon by the parties in Article V of the arbitration agreement rendered the Award “non-binding” pursuant to Sections 27 and 28 of the Czech Arbitration Act. 14 The court stressed that the fact whether the application for review had been filed in due time and by authorised persons shall be exclusively decided by the “higher arbitration court”. 15 In this respect the court did not analyse contradicting submissions of the parties of who was a competent person to represent the Czech Republic in filing the application for review. The Austrian Supreme Court concluded that at that point there was no final and binding award to enforce within the meaning of the New York Convention. Considerations of the French Cour de cassation In its decision 16 the French Cour de cassation noted that the characterization of an award as final does not depend on the terms chosen by the parties or the arbitrators. The Czech arbitrators characterized the Award as being “final” because it settled the last issue in dispute between the parties. The French court accepted the position that, when parties agree in an arbitration agreement a possible review of the award and the review mechanism is properly initiated, the award cannot be considered as “final” and, thus, enforceable. The court found that the intent of the arbitration agreement was to deprive the parties of a final award if an application 13 Supra note 7, para. 3.4.3. 14 Section 27 of the Czech Arbitration Act sets forth: “In the arbitration agreement the parties may agree that the arbitral award can be reviewed by other arbitrators upon the application of any of the parties or both of them. Unless otherwise provided in the arbitration agreement, the application for review shall be delivered to the other party within 30 days of the day the arbitral award was delivered to the party who is seeking the review. The review of the arbitral award forms a part of the arbitration proceedings and is governed by the provisions of this act.” Section 28 (2) of the Arbitration Act stipulates: “The arbitral award, which cannot be reviewed pursuant to Section 27 or because the time period for filing an application for review under Section 27 has elapsed, acquires, upon its delivery, the feature of a legally effective court decision and can be enforced by the court.” (Translation by the author). 15 Supra note 7, para. 3.4.5. 16 Supra note 8. Award was thus binding and capable of enforcement. Considerations of the Austrian Supreme Court

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