CYIL 2015

364

MONIKA FEIGERLOVÁ

CYIL 6 ȍ2015Ȏ

binding. However, it seems that it is not firmly established in courts’ practice that the

issue “binding” within the meaning of Article V(1)(e) of the New York Convention

shall be decided by reference to an autonomous interpretation of the New York

Convention as opposed to the law governing the award (in the case at hand to Czech

law). Although the courts seem to take that approach, they were reluctant to avow it.

The text of Article V(1)(e) conspicuously does not link the term “binding” with

the law applicable to the award, as it does, on the other hand, in the second part of

this provision in respect of the setting aside and suspension of the award.

This is,

however, not yet an unanimously accepted position by all authors. The law governing

the award still needs to be considered in order to determine whether the award is

still open to a “genuine appeal on the merits”, as the English court did in the Diag

Human case, and in this respect reviewed submitted expert evidence on the law of

the Czech Republic. Professor van den Berg, however, considers such inquiry to be,

technically speaking, only for the purpose of the term “binding” of Article V(1)(e),

instead of for the purpose of qualifying whether the award has become binding under

the applicable law.

Both the Austrian and English courts made summaries of the current opinions on

the issue and then, without taking a thoroughly reasoned approach, proceeded with

the autonomous interpretation of the Convention.

The French Cour de cassation

initiated no discussion at all as regards “binding” (

obligatoire

) versus “final” (

final

)

and what law should be applied to set the binding test. The French court considered

it sufficient to find out that the Award could not be “final” as it had been effectively

cancelled by invoking the review process.

Overall, it is rather uncommon to agree on a review mechanism in arbitration;

so judicial considerations of the “binding” question as outlined above will probably

remain limited to a few cases.

Enforcement resisted due to issue estoppel

Diag Human started the enforcement proceedings with respect to the Award

before the English High Court of Justice on 20 July 2011. Mr Justice Burton issued

ex parte

order the next day giving Diag Human leave to enforce the Award and

entering judgment against the Czech Republic in the terms of the Award. The Czech

Republic sought to set aside the above order, claiming that the Award had not yet

Supra

note 9, para. 342.

Supra

note 9, paras. 342-343.

Supra

note 7, para. 3.3-3.4. The Austrian Supreme Court observed that there is an ongoing discussion

in Austria about the meaning of a binding award. One view supports the definition by ordinary

recourse, another view dictates looking at the law of the seat. Nevertheless, the Austrian court held:

“a more detailed analysis of this issue is, however, unnecessary, because both interpretations lead to

the same result” (Translation of the passage of the decision from German to English is taken from the

English High Court Decision in para. 97).