ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPE
This presentation is the property of its rightful owner.
Sponsored Links
1 / 11

ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPE Dr Erhard Böhm Baier Böhm Attorneys at Law , Vienna PowerPoint PPT Presentation


  • 52 Views
  • Uploaded on
  • Presentation posted in: General

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. BAIER BÖHM ATTORNEYS AT LAW. INTRODUCTION Dispute Board Rules of the ICC. Dispute Board issues Determinations

Download Presentation

ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPE Dr Erhard Böhm Baier Böhm Attorneys at Law , Vienna

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Enforcement of dispute board decisions in central and eastern europe dr erhard b hm baier b hm attorneys at law vienna

ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPEDr Erhard BöhmBaier BöhmAttorneys at Law, Vienna

DRBF 6th Annual International Conference, Budapest


Introduction dispute board rules of the icc

BAIER BÖHM

ATTORNEYS AT LAW

INTRODUCTIONDispute 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


Determination binding effect

BAIER BÖHM

ATTORNEYS AT LAW

DETERMINATION – BINDING EFFECT

Recommendation:

binding if no notice of dissatisfaction within 30

days from receipt

Decision:

Immediately binding; remains binding despite

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?


Determination expert opinion

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

„Fair trial“

Successful challenge: parties are not contractually

bound


How to enforce binding determination

BAIER BÖHM

ATTORNEYS AT LAW

HOW TO ENFORCE BINDING DETERMINATION

No direct enforcement

Enforcement „through contract“

Enforcement through arbitration/courts


Enforcement through contract

BAIER BÖHM

ATTORNEYS AT LAW

ENFORCEMENT „THROUGH CONTRACT“

Non-compliance is breach of contract

Non-compliance may trigger contractual

sanctions,

e.g.

Retention right

Right to suspend performance

Penalty

Right to termination

Damages

Interim/conservatory measures before courts


Enforcement through arbitration

BAIER BÖHM

ATTORNEYS AT LAW

ENFORCEMENT THROUGH ARBITRATION

Failure to comply may be referred to arbitration, if

agreed

Arbitration -v- Courts

Who wants to/has to go to arbitration?

Recommendation:

Notice of dissatisfaction of losing party

Recommendation not binding

Winner must sue

Decision:

immediately binding

Loser must sue to „get rid“ of Determination

Time Limit for commencement of arbitration


Drb procedure condition precedent to arbitration

BAIER BÖHM

ATTORNEYS AT LAW

DRB PROCEDURE – „CONDITION PRECEDENT“ TO ARBITRATION

Statement of Case

Determination within 90 days from

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

jurisdiction, request for arbitration may be declared

inadmissible (premature)


Arbitration v dispute board

BAIER BÖHM

ATTORNEYS AT LAW

ARBITRATION –v- DISPUTE BOARD

Determinations admissible in arbitral or judicial

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

Arbitrators are much more „removed“ from the action

Evidence „underneath concrete“

BUT:


Arbitration different framework

BAIER BÖHM

ATTORNEYS AT LAW

ARBITRATION – DIFFERENT FRAMEWORK

Arbitrators must render an award that is

Not subject to challenge in court

Enforceable

Impact of national law

Law -v- Equity

Mandatory rules applicable despite choice of

foreign law

Ordre public


Enforcement of dispute board decisions in central and eastern europe dr erhard b hm baier b hm attorneys at law vienna

Dr Erhard BöhmBAIER BÖHMATTORNEYS AT LAWKärntner Ring 12A-1010 ViennaAustriaTel: + 43 1 515 50 0Fax: + 43 1 515 50 50email: [email protected]


  • Login