384 / 464
370
MONIKA FEIGERLOVÁ
CYIL 6 ȍ2015Ȏ
identify a jurisdiction where there is a good chance of obtaining a favourable decision
and seek enforcement in such jurisdiction, even if in that country the debtor has no
assets. Subsequently, he may try to rely on the favourable enforcement decision in
a jurisdiction where the debtor has property raising the plea of estoppel. In doing
so the award credit might potentially prevent the debtor from making challenges to
enforcement that the debtor might have otherwise raised in that jurisdiction.
By contrast, the losing party could be tempted to make a similar consideration. It
could wish to have the award first enforced in a less enforcement-friendly jurisdiction
with a chance to resist the enforcement. For example, if procedurally feasible, it
could apply in that jurisdiction for declaration that one of the grounds for refusal
listed in the New York Convention is satisfied. If it were successful, that could bar
enforcement in England or other jurisdiction applying analogous doctrines. The
consequences of the English ruling will depend on the category of issues in respect of
which the plea of estoppel could be raised.
On the other hand, it has to be remembered that the New York Convention
itself contains a so-called “more-favourable-right” provision enabling application of
more favourable national arbitration law. The second part of Article VII(1) provides
that “the provisions of the present Convention shall not … deprive any interested
party of any right he may have to avail himself of an arbitral award in the manner
and to the extent allowed by the law or the treaties of the country where such award
is sought to be relied upon.” This provision of the New York Convention is apt to
produce disparate results of enforcement with respect to the same award in different
jurisdictions and as such can represent an incentive for forum shopping as well. From
this perspective the consequences of the English High Court decision shall not be
overstated. Moreover, the decision was not appealed.
In my view the planning strategies of enforcing an award in multiple jurisdictions
will become even more diligent; however, the decision where to initiate the enforcement
proceedings will remain to be driven by the location of the debtor’s assets. With
assets in more countries it has always been the question of identifying the most
enforcement-friendly jurisdiction. The English decision might, however, influence
consideration as regards the timing and the order in which enforcement proceedings
will be brought.
The aim of the English court was evidently to prevent re-litigating issues already
determined and perhaps to avoid reaching different conclusions on the same issue by
different bodies. The motive was, however, not expressly mentioned in the decision,
and it can be only speculated whether the final goal of the English judge was to
contribute to global justice. However, the approach does not seem to be well chosen,
as it brings some uncertainty about the closed list of grounds of resisting an arbitral
award of the New York Convention.