CYIL 2015

DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT… Conclusion The discussed decisions rendered in the Diag Human case highlight the risk that principles surrounding enforcement might be broader than envisaged in the text of the New York Convention. The decisions also show that the text of the New York Convention itself, including the commercial reservation, referring to autonomous interpretation for determining what is a “binding award” or to the law of the forum for determining what is “commercial matter”, does not effectively offer the possibility of a uniform interpretation. From the decision of the English High Court it appears that, based on the common law doctrine of issue estoppel, a pre-existing decision relating to the enforcement of an award in one jurisdiction may have an impact on the enforceability of the award in another jurisdiction. There is no doubt that the English High Court made the determination of the issue anew and found for itself that the Award was not yet binding. From this perspective, the question is to what extent it was necessary for the English enforcement court to bring a new ground for resisting enforcement outside of the New York Convention. Any arbitral award debtor shall be aware of the decision and of the fact that the same approach can be taken by courts in other common law jurisdictions where similar issue estoppel rules apply. Whether the rule applies conversely – that a favourable enforcement of an award in one state means that enforcement will automatically proceed in another state, with the exception of public policy and arbitrability – remained unanswered. The US case demonstrates that, despite the strong pro-enforcement bias of the New York Convention and proclaimed US public policy favouring international arbitration, a combination of certain factors in an award, which at first sight looked like an ordinary foreign arbitral award, can prevent enforcement. The case study not only encourages parties seeking multi-jurisdictional enforcement of an arbitration award to plan enforcement strategies even with a greater care, but it evidences that uniform interpretation and application of the New York Convention in the practice of the courts in a number of jurisdictions is rather difficult to achieve.

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