Croatia's Waiver Of Its Right To Challenge An Award - Can It Still Request A Revision?

Author:Dr. Patrick Rohn
Profession:Thouvenin Rechtsanwalte
 
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On 27 October 2017, the Swiss Federal Supreme Court (the "Court") published on its website a new decision in the field of international arbitration (the "Decision").1 The Decision was rendered by all five members of the First Civil Chamber and, in addition, it will be included in Court's publication of leading cases, thereby adding particular weight to this case.

In the Decision, the Court summarizes the requirements to validly waive the right to challenge an award with the Court and addresses the question whether a party can despite such a waiver still request a revision.

1 FACTS2

In 1990, the Croatian state-owned energy company INA Industrija Nafte ("INA") was privatized and Croatia became its major shareholder. In 2003, the Hungarian petroleum and gas company MOL acquired 25% of the shares of INA and concluded a shareholders' agreement with Croatia. In 2008, MOL became INA's largest shareholder and, in 2009, Croatia and MOL concluded two agreements resulting in MOL assuming control over INA.

On 17 January 2014, Croatia initiated arbitration proceedings against MOL alleging that the two agreements concluded in 2009 would be null and void ab initio due to the fact that the agreements were obtained only by a 10-million-euro bribe to Ivo Sanader, the former prime minister of Croatia.

The arbitration proceedings were conducted under the UNCITRAL arbitration rules and Geneva was fixed as the seat of the arbitral tribunal. The arbitral tribunal was composed of three members, Neil Kaplan QC, chair, Jan Paulsson, appointed by MOL and a Croatian law professor, Jakaa Barbić, appointed by Croatia. On 23 December 2016, the arbitral tribunal rendered its final award and dismissed the requests of Croatia.

On 1 February 2017, Croatia filed an action for annulment with the Court and, subsidiary, a request for a revision3 of the award. Croatia alleged, inter alia, that its arbitrator, law professor Jakaa Barbić, should have recused himself as arbitrator given that he had been designated by INA as arbitrator in another arbitration around 3 October 2013, at a time when INA was already under the control of MOL. These circumstances should have been disclosed to the parties as they would raise justifiable doubts as to the independence and impartiality of the Croatian law professor.

MOL's principal position was not to enter into the matter at all, given that this action for annulment was inadmissible due to the following contractual waiver of the right to...

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