CYIL 2015

DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT… become “binding” for the purposes of section 103(2)(f ) of the Arbitration Act 1996 and that the Austrian Supreme Court’s decision, 27 which had been rendered in the meantime, gave rise to an issue estoppel on that issue. The question to be ruled on by the English court would obviously be whether the Award is binding or not in the sense of Article V(1) of the New York Convention. 28 Nonetheless, the principal question before the English court disputed by the parties was whether the earlier enforcement proceedings conducted in Austria under the New York Convention gave rise to an issue estoppel to the effect that the Award is “not binding”. In other words, whether the earlier Austrian Supreme Court’s decision delivered in the context of enforcement proceedings over the Award precluded the English enforcement court from making its own assessment of whether the Award was binding. The English court decided that the Austrian Supreme Court’s decision of 2013 holding that the Award was not yet binding created an issue estoppel in favour of the Czech Republic. 29 The judge first summarized the current English law on the issue estoppel, which, simply said, means that, when an issue has been decided and in subsequent proceedings a party seeks to re-open that issue, the court in the subsequent proceedings treats the previous decision on that issue as binding and does not allow the issue to be re-litigated. The English court found that the Austrian decision that the final award was not yet binding was a decision on the merits on the same issue as was brought before the English court. The same issue was, therefore, already decided by the Austrian court, and the English court will follow it. 30 The judge held that, where the issues before the two courts were the same and the decision in the other court could be said to be on the merits, an estoppel arouse. At the same time for the plea of estoppel it is 27 Supra note 7. 28 The wording of Article V(1) of the New York Convention is reflected in Section 103(1) of the English Arbitration Act 1996. 29 Supra note 3, para 124. 30 Supra note 3, para 124. The court held: “… there is no doubt, in my view, that the issue actually determined by the Supreme Court was that the Award was not binding. It is true that that decision was reached in the context of enforcement proceedings brought pursuant to the Convention, which is, as I understand, in effect directly enforceable in Austria, whereas the present enforcement proceedings are brought pursuant to s103 of the 1996 Act. However, in my view, that is a distinction without a difference given the background to that statutory provision and the fact that its purpose is to give statutory effect in this jurisdiction to the Convention; … In my judgment, that is sufficient to give rise to an issue estoppel to such effect, i.e. the Award is not binding. … it is irrelevant whether this court might consider such decision wrong on the facts or as a matter of English law. For the avoidance of doubt, any overriding consideration that the application of the principles of issue estoppel must work justice rather than injustice does not, in my view, lead to any different consideration.”

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