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BELGIUM 16
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)
BELGIUM 16
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.