RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: THE APPLICATION OF THE NEW YORK CONVENTION BY NATIONAL COURTS - CZECH REPUBLIC

Abstract

The courts in the Czech Republic do not have any major problems with the application of the NewYork Convention (hereinafter the “NYConv” or “Convention”). The Czech Republic (respectively the formerCzechoslovakia) asserted a reciprocity reservation under Article I (3) of the NYConv. The Czech Republic isalso a contracting state of many bilateral treaties on mutual legal assistance, which regularly deal with theissue of enforcement of foreign arbitral awards. Under Czech law, there is no exequatur proceeding. Thegrounds set out by Article V are not mandatory, as suggested by the English text of this provision (“may be refused”).The official Czech translation also retains this discretionary power. This implies that the judge is notobliged, according to the NYConv, to refuse recognition and enforcement if one of the grounds of Article V exists,and the judge has the discretionary power to grant the recognition and enforcement of an award. It isarguable that in a case in which a ground for the refusal of enforcement is present, the enforcement courtnevertheless has the remaining discretionary power to grant enforcement in those cases in which the violationis de minimis. As was explained in the introduction to this questionnaire, the NYConv, as such, creates partof the Czech national legal order. Therefore, the possibility to waive any of the grounds has to be found in thetext of the NYConv itself. However, the wording of Article V of the NYConv does not provide any guidance onthe mandatory nature of its stipulations.