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DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT…
to consideration of the availability of debtor’s assets in a given country, another
consideration shall be carried out before applying to the English court in case the
award has, in previous enforcement proceedings before a court of other jurisdiction,
(a) been found not yet binding, or even (b) failed to be enforced for other reasons. A
failure in one jurisdiction might prevent enforcement in another jurisdiction based
on the plea of estoppel, at least in common law countries having a similar approach to
an issue estoppel. As reported by T. Hattam, an Australian court might have reached
the same conclusion.48 Even in continental countries this solution does not need to
come as a complete surprise because analogous doctrines might apply. Recently the
Swiss Federal Court held that res iudicata is part of Swiss procedural public policy.49
Referring back to the conclusion of the English High Court in the Diag Human
Case, it gives rise to the question of whether the plea of estoppel could operate the
other way round. To put it differently, could an award creditor rely on a favourable
enforcement decision rendered in one jurisdiction to the effect that enforcement
will automatically proceed in another jurisdiction based on the successful decision
from the earlier proceeding using the plea of estoppel? From this perspective, the
English High Court’s decision could be seen as provoking forum shopping and
even more as establishing a one-stop shop. An award creditor might be tempted to
(Diag Human v Czech Republic), (5 June 2014),
ny-convention-award-not-binding-under-aa-1996-s-1032f-diag-human-v-czech-republic/ (last visited
21 May 2015).
48 See Hattam, T.: “Australian Courts Aligned with the UK in Reluctance to Depart from Decisions of the Seat
Court on Asserted Procedural Defects when Enforcing Foreign Arbitral Awards”, (25 October 2013) (http://
to-depart-from-decisions-of-the-seat-court-on-asserted-procedural-defects-when-enforcing-foreign-
arbitral-awards/). Hattam refers to a decision in the Gujarat Case (Gujarat NRE Coke Ltd v Coeclerici
Asia (Pte) Ltd [2013 ] FCAFC 109) where the first instance judge ruled that the question of whether
Gujarat had a reasonable opportunity to present its case was decided by the English Court and, thus,
the issue could not be re-litigated in Australia as there was an issue estoppel. In the court’s view, the
fact that the English court considered an application to set aside the award and the Australian court
was asked to consider an application to refuse enforcement of the award did not characterize the issues
to be decided as different. The Australian Federal Court, however, declined to determine whether issue
estoppel operates in this context and declared that there was no binding authority in Australia clearly
resolving the issue. Nonetheless, the Federal Court of Australia interestingly remarked that “it would
be generally inappropriate for the enforcement court of a Convention country to reach a different
conclusion on the same question of asserted procedural defects as that reached by the court of the seat
of arbitration.”
49 See Judgment of the Swiss Tribunal fédéral of 27 May 2014, ref. no. 4A_508/2013. The original
decision is in French, available at . The unofficial English translation of the decision,
courtesy of Charles Poncet, is available at
effect-foreign-judgment. The Swiss Federal Tribunal held that res iudicata applies to the relationship
between a court decision rendered abroad and the award of an international arbitral tribunal sitting in
Switzerland. If the object of the dispute and the parties in the arbitration are the same as in the foreign
state court proceedings, an arbitral tribunal sitting in Switzerland must declare the arbitration request
inadmissible if a defence of res iudicata is raised (Sections 3.1 and 3.3).