CYIL 2015

360

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

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

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.

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

Decision of the Austrian Supreme Court (Oberster Gerichtshof) no. 3 Ob 39/13a of 16 April 2013.

Decision of the French Supreme Court (Cour de cassation – Première chambre civile) no. 193 of

5 March 2014 (12-29.112).

See Van den Berg, A.J.:

The NewYork Convention of 1958

, T.M.C. Asser Institute, The Hague, 1981, p. 274.