The recent English High Court decision in Carpatsky Petroleum Corporation v PJSC Ukrnafta  EWHC 769 (Comm) provides useful guidance on the English courts’ approach to determining whether a party is entitled to resist the enforcement of an award on one of the grounds set out in s. 103(2) of the Arbitration Act 1996 (which implements the grounds for refusal of recognition and enforcement of awards set out in Article V of the 1958 New York Convention), in circumstances where similar issues have already been addressed, or should reasonably have been addressed, in earlier proceedings in other jurisdictions relating to the recognition or enforcement of the award.
In Wicor Holding A.G. v. Taizhou Haopu Investments Limited (Civil Action (2015) Tai Zhong Shang Zhong Shen Zi No. 00004), the Taizhou Intermediate People’s Court refused to enforce an ICC award on the ground of public policy. Facts Taizhou Haopu Investment Limited (“Haopu“) entered into a joint venture agreement (“JVA“) with Wicor Holding A.G. (“Wicor“) in 1997, establishing a joint venture company (“JV“). The parties agreed in the JVA to have their disputes arbitrated “in accordance with ICC mediation and arbitration rules“. The JVA also provided that “if one party
The English Commercial Court has refused to enforce a £275 million New York Convention award against the Czech Republic in favour of the Lichtenstein company Diag Human on the basis that an earlier judgment of the Austrian Supreme Court created an issue estoppel or, alternatively, that the award was not “binding” under s.103(2)(f) of the Arbitration Act 1996. This is a landmark decision as it is believed to be the first time that issue estoppel has been successfully argued as a ground for refusing enforcement of a New York Convention
Sovereign immunity from enforcement is a major concern for investors. This international law principle implies that a State’s asset cannot be seized without its consent to enforce a judicial or arbitral decision, including international investment arbitration awards. Dispute resolution clauses in many contracts concluded with States contain therefore an express waiver of immunity from, among other things, enforcement. But this might not be sufficient: in NML Capital Ltd v Argentina the French Cassation Court has tightened the previous test for such waivers to be effective. French case law has traditionally restricted