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

1. ENFORCEMENT OF DISPUTE BOARD DECISIONS IN CENTRAL AND EASTERN EUROPEDr Erhard BöhmBaier BöhmAttorneys at Law, Vienna DRBF 6th Annual International Conference, Budapest

2. 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

3. 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?

4. 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

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

6. 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

7. 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

8. 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)

9. 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:

10. 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

11. Dr Erhard BöhmBAIER BÖHMATTORNEYS AT LAWKärntner Ring 12A-1010 ViennaAustriaTel: + 43 1 515 50 0Fax: + 43 1 515 50 50email: e.boehm@baierboehm.com