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irrelevant whether the Austrian court decision was right or wrong on the facts or as
a matter of English law.31
The court further argued that there is no authority to support the proposition
that issue estoppel can never arise in a proceeding on enforcement of the New York
Convention award.32 He went on to clarify that questions of arbitrability or public
policy might be different in different states and that a decision in another jurisdiction
on those issues will, thus, not ordinarily give rise to an issue estoppel in England.33
The judge summarized four conditions for issue estoppel to be satisfied 34 which
he found present on the facts in the Diag Human case: (a) he was confronted with
the same issue and subject matter in a later proceedings between the same parties, (b)
the Austrian Supreme Court was a court of competent jurisdiction recognised under
English private international law, (c) the Austrian Supreme Court’s judgment on the
issue was final and conclusive and (d) it was a decision “on the merits”. As a result,
the parties were estopped from raising the same issue before the English court.
As discussed above in this paper, interestingly the judge intentionally left the
“binding” issue unanswered. As a consequence, without having the answer on the
binding effect of the Award, it could be questioned as how he could have determined
that an “identical” issue had already been decided in Austria. In this context, Diag
Human claimed, most notably, that in proceedings to enforce an award under the
New York Convention issue estoppel cannot arise from decisions in other states on
enforcement itself as different states may apply a different test of the meaning of “a
binding award” and that the Austrian court’s decision did not address the meaning of
“binding” under s. 103 of the English Arbitration Act.
To be on the safe side, the English judge carried out his own determination of
whether or not the Award was binding and held that, in the event he was wrong on
the issue estoppel, the Award was in any case not yet binding within the meaning of s.
103(2)(f ) of the English Arbitration Act, because the arbitration agreement between
Diag Human and the Czech Republic provided for a review process that was validly
invoked by the Czech Republic after the Award had been rendered.35
Following its publication the decision was subject to sharp criticism from the
international arbitration community, claiming that it is the first time that enforcement
of an award had been refused in England on the grounds of issue estoppel.36 The
fear was that the English High Court set a rule which allows the judgment of a
foreign court (other than a court at the seat of the arbitration) refusing enforcement
31 Supra note 3, para 107.
32 Supra note 3, para 116.
33 Supra note 3, para 116.
34 Supra note 3, para 107.
35 For details please refer to the section “‚Finality‘ of an award” of this paper.
36 See e.g. Perry, S., Woolley, R.: Issue estoppel halts enforcement in London , (29 May 2014), http://