ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPE Dr Erhard Böhm Baier Böhm Attorneys at Law, Vienna DRBF 6th Annual International Conference, Budapest

INTRODUCTION Dispute Board Rules of the ICC  Dispute Board issues Determinations  Recommendations (DRB)  Decisions (DAB, CDB maybe)  Determinations are not arbitral awards  Parties agree to be contractually bound under certain conditions certain conditions BAIER BÖHM ATTORNEYS AT LAW

DETERMINATION – BINDING EFFECT  Recommendation: binding if no notice of dissatisfaction within 30 binding if no notice of dissatisfaction within 30 days from receipt days from receipt  Decision: Immediately binding; remains binding despite Immediately binding; remains binding despite notice of dissatisfaction within 30 days from receipt notice of dissatisfaction within 30 days from receipt  Parties agree not to contest Determination as far as they can validly do so – what does this mean? as they can validly do so – what does this mean? BAIER BÖHM ATTORNEYS AT LAW

DETERMINATION – EXPERT OPINION?  Challenge of Expert Opinions?  Violation of „bonos mores“  Gross inequity  Dispute Board exceeds limits imposed by the contract contract  „Fair trial“  Successful challenge: parties are not contractually bound bound BAIER BÖHM ATTORNEYS AT LAW

HOW TO ENFORCE BINDING DETERMINATION  No direct enforcement  Enforcement „through contract“  Enforcement through arbitration/courts BAIER BÖHM ATTORNEYS AT LAW

ENFORCEMENT „THROUGH CONTRACT“  Non-compliance is breach of contract  Non-compliance may trigger contractual sanctions, sanctions, e.g. e.g.  Retention right  Right to suspend performance  Penalty  Right to termination  Damages  Interim/conservatory measures before courts BAIER BÖHM ATTORNEYS AT LAW

ENFORCEMENT THROUGH ARBITRATION  Failure to comply may be referred to arbitration, if agreed agreed  Arbitration -v- Courts  Who wants to/has to go to arbitration?  Recommendation: Notice of dissatisfaction of losing party Notice of dissatisfaction of losing party Recommendation not binding Recommendation not binding Winner must sue Winner must sue  Decision: immediately binding immediately binding Loser must sue to „get rid“ of Determination Loser must sue to „get rid“ of Determination  Time Limit for commencement of arbitration BAIER BÖHM ATTORNEYS AT LAW

DRB PROCEDURE – „CONDITION PRECEDENT“ TO ARBITRATION  Statement of Case  Determination within 90 days from commencement (unless extended) commencement (unless extended)  It must be a „Determination“  Findings  Reasons  Date  Signature  Condition Precedent not met: if arbitral tribunal has competence to rule on its own if arbitral tribunal has competence to rule on its own jurisdiction, request for arbitration may be declared jurisdiction, request for arbitration may be declared inadmissible (premature) inadmissible (premature) BAIER BÖHM ATTORNEYS AT LAW

ARBITRATION –v- DISPUTE BOARD  Determinations admissible in arbitral or judicial proceedings between the same parties proceedings between the same parties  Will arbitrators confirm Determination?  Arbitration is not an appeals procedure  Arbitral proceedings are independent  Dispute Board‘s „job well done“  DB has first hand knowledge of site conditions; immediate contact to people when it matters immediate contact to people when it matters  Arbitrators are much more „removed“ from the action  Evidence „underneath concrete“ BUT: BAIER BÖHM ATTORNEYS AT LAW

ARBITRATION – DIFFERENT FRAMEWORK  Arbitrators must render an award that is Not subject to challenge in courtNot subject to challenge in court EnforceableEnforceable  Impact of national law Law -v- Equity Law -v- Equity Mandatory rules applicable despite choice of Mandatory rules applicable despite choice of foreign law foreign law Ordre public Ordre public BAIER BÖHM ATTORNEYS AT LAW

Dr Erhard Böhm BAIER BÖHM ATTORNEYS AT LAW Kärntner Ring 12 A-1010 Vienna Austria Tel: Fax: