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DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT…
for review was made in the agreed timeframe. The court expressly stated that the
application of the Czech Republic for review had “squashed” the original Award.
17
Considerations of the English High Court of Justice
The English court declined to offer a definition of what is meant by “ordinary
recourse”, which is relevant to the meaning of “binding” under the English Arbitration
Act. The approach in England is that, if an award is still open to ordinary recourse,
as opposed to extraordinary recourse, then it is not yet binding.
18
Leading authorities
suggest in this respect that ordinary recourse means a genuine appeal on the merits.
19
Effectively the court deliberately left the precise meaning of “binding” in England
unanswered.
In its decision the court, nevertheless, made a number of observations which
are worth being mentioned. First, the court declared that there is no guidance in
the New York Convention or in the English Arbitration Act as to the meaning of
“binding”.
20
It referred to an English case law indicating that the award is binding
even if a challenge to the award were pending in the seat. Finally, the court was
careful to state that the question of whether or not the award is binding shall be
decided by reference to an autonomous interpretation of the New York Convention,
as opposed to the law of the seat of the arbitration, where the award was obtained.
21
Despite the court’s reluctance to make the distinction between “ordinary
recourse” and “extraordinary recourse”, the court accepted that the invocation of
the contractual review process was a form of “ordinary recourse”. The question of
whether the review process had been properly invoked so as to prevent the award
becoming binding was a question of Czech law. After having considered substantial
expert evidence about Czech law, the judge found that the application for review
under Article V of the arbitration agreement was validly triggered on behalf of the
Czech Republic by the signature and service of one or more of the four letters dated
22 August 2008.
22
Consequently, the court concluded that the Award was subject to
“ordinary recourse” and not binding for this reason.
23
Divergent views?
It is interesting to see that none of the courts discussed above underwent an
extensive analysis as regards the law governing the moment when an award becomes
17
Supra
note 8. The French Cour de casssation expressly stated : « …la demande de réexamen anéantissait
la décision originaire.. »
18
Supra
note 3, paras. 30-36.
19
See Blackbay, N., Partasides, C., et al.:
Redfern and Hunter on International Arbitration
, Oxford University
Press, 2009, p. 648, para 11.85.
20
Supra
note 3, paras. 30 and 42.
21
Supra
note 3, para. 34.
22
Supra
note 3, paras. 174-182.
23
Supra
note 3, para.182.