CYIL 2015

362

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

Award was thus binding and capable of enforcement.

Considerations of the Austrian Supreme Court

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”.

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.

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”.

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

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

Supra

note 7, para. 3.4.3.

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).

Supra

note 7, para. 3.4.5.

Supra

note 8.