In February 2011, Danish Polish Telecommunication Group I/S (the
"Applicant") applied to the Irish High Court to have an
arbitration award recognised and enforced in Ireland. The award was
actually a Partial Award – in the amount of approximately
€268 million - which has been granted in 2010 by an
arbitral tribunal in Vienna against Telekomunikacja Polska SA (the
"Respondent") in the context of a multi staged and
By proceedings issued in the Commercial Court of Vienna, Austria
on 2nd December, 2010 ("the Austrian Proceedings"), the
Respondent sought to challenge the Partial Award in accordance with
the UNCITRAL Arbitration Rules and applied for it to be set aside.
It was on this basis that the Respondent resisted an application to
have the Partial Award recognised and enforced in Ireland.
On 6 October 2011, upon application made by Arthur Cox acting on
behalf of the Respondent, Ms Justice Finlay Geoghegan of the High
Court granted an adjournment of the application for recognition and
enforcement of the Partial Award, pending the outcome of the
Application to recognise and enforce
Article 35 Recognition and enforcement and Article 36
Grounds for refusing recognition or enforcement of the
Model Law governed the issues determined on this application.
The Applicant submitted the following:
that each of the grounds relied upon by the Respondent pursuant
to Article 36(1) were without foundation;
that the Court should refuse the application for adjournment
pending the determination of the Austrian Proceedings. It submitted
that the expert opinions of the Respondent's Austrian lawyers,
when properly analysed, did not establish reasonable or substantial
grounds in favour of the Respondent succeeding to set aside the
Partial Award in the Austrian proceedings;
that if the High Court were to exercise its discretion to
adjourn its decision on recognition and enforcement pending a
determination of the Austrian Proceedings, that it should:
make an order for the recognition and enforcement of part of
the Partial Award; and
should make an order requiring the provision of security for
The Respondent contended that the High Court should refuse the
recognition and enforcement of the Partial Award under 36(i) and
(iv) of the Model Law, or, in the alternative, that the High Court
should exercise its power under Article 36(2) to adjourn the
decision on recognition and enforcement of the Partial Award
pending the determination the Austrian Proceedings.
The Respondent submitted that it was neither necessary nor
appropriate for the High Court to determine questions of Austrian
law in relation to the application for an adjournment under Article
36(2) but rather that the court need only be satisfied on the
expert opinions adduced that there were reasonable or substantial
grounds for contending that the Austrian Proceedings may succeed in
having the Partial Award set aside by the Austrian courts.
The Court agreed with these submissions but declared that:
"A pro-enforcement construction of Article 36(2) of the
UNCITRAL Model Rules suggests that the mere existence of
proceedings seeking to set aside an arbitration award would not
normally of itself constitute grounds for an
Therefore the Court held that it must engage in a 'brief
consideration' of the materials before it and then decide
whether the Respondent has demonstrated that it had reasonable
grounds or a seriously arguable case for the setting aside of the
Partial Award in the Austrian Proceedings.
Following consideration, the High Court ordered that the
application for recognition and enforcement be adjourned in full
pending the outcome of the Austrian Proceedings. The High Court
further ordered that the sum of €1.5 million be lodged by
the Respondent with their solicitors pending the outcome of the
These proceedings were significant in circumstances where the
Partial Award was simultaneously being sought to be recognised in
various other jurisdictions. There is no appeal from a decision of
the Irish High Court on recognition and enforcement. Consequently
both parties were aware that a decision of the Irish High Court to
enforce the Partial Award might have implications on their
respective worldwide litigation strategies.
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