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AUSTRIA 38
Oberster Gerichtshof, 8 September 2022, 3 Ob 80/22v
(S* SE (in fact: Strabag SE) v. State of Libya)
AUSTRIA 38
The Supreme Court reversed the decisions below, which had enforced an investor-state award rendered under a BIT, and remanded the case for an examination of whether the claimant and Libya had based their dispute solely on the BIT or had concluded a separate arbitration agreement – in light of the requirement of the applicable ICSID Additional Facility Rules that an agreement to arbitrate under the Rules must be approved by the ICSID Secretary-General of ICSID before the proceedings can commence. As the lower courts had not examined this issue, the objection of excess of authority raised by Libya under Art. V(1)(c) of the Convention could not be determined. The Court had found at the outset that Libya, though not a Contracting State, could rely on the Convention’s grounds for refusal.
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.
Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.
Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.
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.