The court decisions available on this website interpret and apply the New York Convention. These court decisions are published in the Yearbook Commercial Arbitration since its Volume I (1976).
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The Supreme Court reversed the order by which the Court of Appeal of Brussels had recognized an ad hoc final award rendered in the Czech Republic. The Court of Appeal had (i) examined the resolution issued by a review panel (as provided for by the arbitration agreement between the disputing parties and as allowed under the applicable Czech law), which had reviewed the final award and concluded that the dispute which was the subject matter of the final award had already been decided by an earlier partial award of the arbitral tribunal, and (ii) concluded that the resolution was a procedural decision that did not affect the binding nature of the final award under the 1958 New York Convention. (1) The Supreme Court explained that “binding” under the Convention means that the award must no longer be open to an appeal on the merits. According to the applicable Czech law, an award subject to review is not binding while the review proceeding is pending, and only becomes binding at the end of that proceeding if it is confirmed by the review award. This was not the case here, and the lower court had therefore erred. (2) The Supreme Court also found that the review resolution had to be taken into account as a legal fact, and therefore did not need – as erroneously held by the lower court – to be recognized first. Attempts to enforce the final award, both pending and after the review proceeding, were unsuccessful in Austria, France, Netherlands, Switzerland, United Kingdom, and United States; successful in Luxembourg.
Hof van Cassatie van België, First Chamber, 10 February 2022, No. C.20.0247.N
(Czech Republic, represented by the Minister of Health v. Diag Human SE)
The Court of Appeal granted the appeal filed by the Republic of Kazakhstan against the first instance decision granting recognition and enforcement of an SCC award rendered in favour of Anatolie and Gabriel Stati and three companies they controlled. The Court found that the Statis had supplied incorrect information to the arbitrators, and that as a consequence the award was tainted by fraud. The Court further stressed that as a court of secondary jurisdiction it would not review the merits of the SCC award, and that the Swedish court decisions upholding the award were irrelevant in the enforcement proceedings.
Cour d’Appel, Brussels, Seventeenth Chamber, Civil Cases, 16 November 2021, Case no. 2020/AR/252
(Republic of Kazakhstan v. Anatolie Stati et al.)
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
The Court of Appeal held that the CAS arbitration agreement resulting from a combination of the provisions in the Statutes of the parties could not be invoked because it was a general agreement referring to arbitration all disputes between the parties, without reference to a defined legal relationship as is required under the relevant provision of Belgian law (which mirrors the requirement in Art. II(1) of the New York Convention).
Court of Appeal, Brussels, Case No. 2016/AR/2048, 29 August 2018
(D v. U (ASBL) UR)
The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.
Belgium 14. Hof van Cassatie van België, 14 January 2010
Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.
Belgium 13. Hof van Cassatie, 15 October 2004
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Belgium 12. Tribunal de Commerce, Brussels, 20 September 1990
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Belgium 11. Cour de Cassation, 5 June 1998
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
Belgium 10. Cour d'Appel, Brussels, 24 January 1997 and Tribunal de Première Instance, Brussels, 25 January 1996
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the admissibility of a set off or counterclaim in enforcement proceedings under the Convention.
The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.
The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.
Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
Belgium 9. Tribunal de Commerce, Brussels, 5 October 1994
The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).
The court discusses the status of an arbitration agreement in a contract that was amended or renewed.
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Belgium 8. Rechtbank van Koophandel, Brussels, 6 May 1993
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Belgium 7. Tribunal de première instance, Brussels, 6 December 1988
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
The court discusses questions relating to interest on the amount due under the arbitral award, including whether the enforcement court may grant interest not granted in the award, modify interest granted in the award, and grant post-award interest.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
Belgium 6. Cour d'Appel, Brussels, 4 October 1985
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Belgium 3. Cour d'Appel, Brussels, First Chamber, 14 October 1980
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Belgium 5. Tribunal de Commerce, Liege, 23 April 1980
The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.
The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.
Belgium 4. Tribunal de Commerce, Brussels, 13 September 1979
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Belgium 2. Cour de Cassation, First Chamber, 28 June 1979
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
Belgium 1. Cour d'Appel, Liege, 12 May 1977
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.
More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.
The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.