CYIL 2015

365

DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT…

become “binding” for the purposes of section 103(2)(f ) of the Arbitration Act 1996

and that the Austrian Supreme Court’s decision,

which had been rendered in the

meantime, gave rise to an issue estoppel on that issue.

The question to be ruled on by the English court would obviously be whether the

Award is binding or not in the sense of Article V(1) of the New York Convention.

Nonetheless, the principal question before the English court disputed by the parties

was whether the earlier enforcement proceedings conducted in Austria under the

New York Convention gave rise to an issue estoppel to the effect that the Award is

“not binding”. In other words, whether the earlier Austrian Supreme Court’s decision

delivered in the context of enforcement proceedings over the Award precluded the

English enforcement court from making its own assessment of whether the Award

was binding.

The English court decided that the Austrian Supreme Court’s decision of 2013

holding that the Award was not yet binding created an issue estoppel in favour of

the Czech Republic.

The judge first summarized the current English law on the

issue estoppel, which, simply said, means that, when an issue has been decided

and in subsequent proceedings a party seeks to re-open that issue, the court in the

subsequent proceedings treats the previous decision on that issue as binding and does

not allow the issue to be re-litigated.

The English court found that the Austrian decision that the final award was not

yet binding was a decision on the merits on the same issue as was brought before the

English court. The same issue was, therefore, already decided by the Austrian court,

and the English court will follow it.

The judge held that, where the issues before

the two courts were the same and the decision in the other court could be said to

be on the merits, an estoppel arouse. At the same time for the plea of estoppel it is

Supra

note 7.

The wording of Article V(1) of the New York Convention is reflected in Section 103(1) of the English

Arbitration Act 1996.

Supra

note 3, para 124.

Supra

note 3, para 124. The court held: “… there is no doubt, in my view, that the issue actually

determined by the Supreme Court was that the Award was not binding. It is true that that decision

was reached in the context of enforcement proceedings brought pursuant to the Convention, which is,

as I understand, in effect directly enforceable in Austria, whereas the present enforcement proceedings

are brought pursuant to s103 of the 1996 Act. However, in my view, that is a distinction without a

difference given the background to that statutory provision and the fact that its purpose is to give

statutory effect in this jurisdiction to the Convention; … In my judgment, that is sufficient to give rise

to an issue estoppel to such effect, i.e. the Award is not binding. … it is irrelevant whether this court

might consider such decision wrong on the facts or as a matter of English law. For the avoidance of

doubt, any overriding consideration that the application of the principles of issue estoppel must work

justice rather than injustice does not, in my view, lead to any different consideration.”