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DIAG HUMAN: A CASE STUDY ON MULTIǧJURISDICTIONAL ENFORCEMENT…
Conclusion
The discussed decisions rendered in the Diag Human case highlight the risk that
principles surrounding enforcement might be broader than envisaged in the text of
the New York Convention. The decisions also show that the text of the New York
Convention itself, including the commercial reservation, referring to autonomous
interpretation for determining what is a “binding award” or to the law of the forum
for determining what is “commercial matter”, does not effectively offer the possibility
of a uniform interpretation.
From the decision of the English High Court it appears that, based on the common
law doctrine of issue estoppel, a pre-existing decision relating to the enforcement of an
award in one jurisdiction may have an impact on the enforceability of the award
in another jurisdiction. There is no doubt that the English High Court made the
determination of the issue anew and found for itself that the Award was not yet
binding. From this perspective, the question is to what extent it was necessary for
the English enforcement court to bring a new ground for resisting enforcement
outside of the New York Convention. Any arbitral award debtor shall be aware of
the decision and of the fact that the same approach can be taken by courts in other
common law jurisdictions where similar issue estoppel rules apply. Whether the rule
applies conversely – that a favourable enforcement of an award in one state means
that enforcement will automatically proceed in another state, with the exception of
public policy and arbitrability – remained unanswered. The US case demonstrates
that, despite the strong pro-enforcement bias of the New York Convention and
proclaimed US public policy favouring international arbitration, a combination
of certain factors in an award, which at first sight looked like an ordinary foreign
arbitral award, can prevent enforcement.
The case study not only encourages parties seeking multi-jurisdictional enforcement
of an arbitration award to plan enforcement strategies even with a greater care, but it
evidences that uniform interpretation and application of the New York Convention
in the practice of the courts in a number of jurisdictions is rather difficult to achieve.