X. AG v. Y. a.s. [Succession of Arbitral Institutions in the Czech Republic] No. 4A_124/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 36

X. AG v. Y. a.s.

[Succession of Arbitral Institutions in the Czech Republic]

No. 4A_124/2010

Headnote

■ Neither the New York Convention nor Swiss municipal law

prevents the filing of a fresh application for enforcement of a foreign

arbitral award based on new documents that were not filed with a

previous application.

■ Where the signature of the presiding arbitrator has been duly

certified by a notary public, that will suffice under article IV(1)(a) of

the New York Convention when the authenticity of the award is not

in dispute. The authentication of the signature of the co-arbitrators

and other persons having signed the award is not required in such

case.

■ An arbitration clause referring to an arbitral institution which no

longer exists at the time when the request for arbitration is filed is

valid and binding provided that (i) another arbitral institution has

succeeded to the former institution in accordance with the law, (ii)

the arbitration rules of the new institution are not fundamentally

different from those of the institution chosen by the parties and (iii)

the rules of the new institution do not contain any fundamental

limitations of the parties’ rights which were not contained in the

rules of the old institution.

Summary of the Decision

A contract made in 1992 by X. AG and Y. a.s. included an arbitration

clause making provision for arbitration before a “tribunal of the

Czechoslovak Chamber of Commerce and Industry in Prague.” In 1996,

Y. a.s. brought an arbitration against X. AG before the Arbitration Court

attached to the Economic Chamber of the Czech Republic and

Agricultural Chamber of the Czech Republic (“the Arbitration Court”).

The arbitral tribunal made an award for Y. a.s. In 2004, Y. a.s. sought to

enforce the award in Switzerland. However, Y. a.s. withdrew its

application for enforcement at the main hearing and the case was

removed from the docket as a consequence. In 2008, Y. a.s. brought

fresh proceedings before the Court of First Instance of Zurich, seeking a

declaration that the award was enforceable. The Court of First Instance

declared the award to be enforceable for part of the award debt, which