CYIL 2015

MONIKA FEIGERLOVÁ CYIL 6 ȍ2015Ȏ identify a jurisdiction where there is a good chance of obtaining a favourable decision and seek enforcement in such jurisdiction, even if in that country the debtor has no assets. Subsequently, he may try to rely on the favourable enforcement decision in a jurisdiction where the debtor has property raising the plea of estoppel. In doing so the award credit might potentially prevent the debtor from making challenges to enforcement that the debtor might have otherwise raised in that jurisdiction. By contrast, the losing party could be tempted to make a similar consideration. It could wish to have the award first enforced in a less enforcement-friendly jurisdiction with a chance to resist the enforcement. For example, if procedurally feasible, it could apply in that jurisdiction for declaration that one of the grounds for refusal listed in the New York Convention is satisfied. If it were successful, that could bar enforcement in England or other jurisdiction applying analogous doctrines. The consequences of the English ruling will depend on the category of issues in respect of which the plea of estoppel could be raised. On the other hand, it has to be remembered that the New York Convention itself contains a so-called “more-favourable-right” provision enabling application of more favourable national arbitration law. The second part of Article VII(1) provides that “the provisions of the present Convention shall not … deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.” This provision of the New York Convention is apt to produce disparate results of enforcement with respect to the same award in different jurisdictions and as such can represent an incentive for forum shopping as well. From this perspective the consequences of the English High Court decision shall not be overstated. Moreover, the decision was not appealed. In my view the planning strategies of enforcing an award in multiple jurisdictions will become even more diligent; however, the decision where to initiate the enforcement proceedings will remain to be driven by the location of the debtor’s assets. With assets in more countries it has always been the question of identifying the most enforcement-friendly jurisdiction. The English decision might, however, influence consideration as regards the timing and the order in which enforcement proceedings will be brought. The aim of the English court was evidently to prevent re-litigating issues already determined and perhaps to avoid reaching different conclusions on the same issue by different bodies. The motive was, however, not expressly mentioned in the decision, and it can be only speculated whether the final goal of the English judge was to contribute to global justice. However, the approach does not seem to be well chosen, as it brings some uncertainty about the closed list of grounds of resisting an arbitral award of the New York Convention.

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