High Court of Ireland Decisions

Judgment Title: Danish Polish Telecommunication Group I/S -v- Telekomunikacja Polska SA

Neutral Citation: [2011] IEHC 369


High Court Record Number: 2011 19 MCA

Date of Delivery: 06/10/2011

Court: High Court

1. Danish Polish Telecommunication Group I/S (“DPTG”) seeks recognition and enforcement of an international arbitral award pursuant to Article 35(1) of the UNCITRAL Model Law on international commercial arbitration (“the Model Law”) given force of law in the State by s. 8 of the Arbitration Act 2010.

2. The Award sought to be recognised and enforced is the corrected Award set out in the dispositive section of the addendum dated 2nd November, 2010, and will, in this judgment, be referred to as “the Partial Award”. Nothing turns on the fact that it is a corrected Award.

3. The Partial Award obliges Telekomunikacja Polska SA (“TPSA”) to pay the principal amount of DKK1,998,422,812.00 (€268,052,448.00). Further paragraphs of the Partial Award require payment of interest and costs.

4. The Partial Award was made in an arbitration which took place in Vienna, Austria pursuant to the UNCITRAL Arbitration Rules and commenced in 2001. The Partial Award is an award made in respect of the first phase of the arbitration which deals with the first period of relevant time (February 1994 to June 2004). It is common case that it is an award which may be the subject of recognition and enforcement in the State pursuant to Article 35 of the Model Law unless recognition and enforcement is refused pursuant to Article 36.

5. For the purposes of this judgment, the background to the dispute need only be briefly recorded. The dispute to which the arbitration relates concerns a contract in writing of 17th April, 1991, between Polish Foreign Trade Company ELECTRIM S.A., acting on behalf of the Polish PTT, and DPTG in relation to the construction in Poland of the North/South Link Optical Fibre System. TPSA is the legal successor of the Polish PTT under the NSL contract.

6. A dispute arose between DPTG and TPSA regarding the amounts owed by TPSA pursuant to the revenue sharing provision in clause 8 of the NSL contract. Article 15 of the NSL contract provides for the settlement of disputes by arbitration in accordance with the UNCITRAL Arbitration Rules, as follows:

“Article 15.

DISPUTES. APPLICABLE LAW.

1. Any dispute and/or difference between the Partie which could not be settled in an amicable way shall be finally settled, without the recourse to the common courts of Law, by the arbitration in accordance with the UNCiTRAL Arbitration Rules. The place of arbitration shall be Vienna, Austria. The language of the proceedings shall be English. The number of arbitrations shall be three. The appointing authority shall be the President of the Federal Economic Chamber, Vienna, Stubenring 12, Austria. The award of the arbitration shall be final and binding and the Parties agree to fulfil it voluntarily.

2. The Austrian Law shall apply to this contract. If any issue in question is covered by the International Telecommunication Convention to which both Denmark and Poland are members, then this Convention will be correspondingly applied.”

8. By proceedings issued in the Commercial Court of Vienna, Austria on 2nd December, 2010 (“the Austrian proceedings”), TPSA seeks to challenge the Partial Award and requests that it be set aside. Those proceedings are being vigorously defended by DPTG. They are relevant to the issues to be determined in this application.

9. This application commenced by originating notice of motion on 26th January, 2011, grounded on affidavit. It was admitted to the Commercial List and case managed by directions in the usual manner. Further affidavits were filed by both parties and lengthy expert opinions exhibited both in relation to the UNCITRAL rules and in relation to Austrian law, including the prospect of success and failure of the Austrian proceedings. The Austrian experts expressed differing views on aspects of Austrian law, its application to the Austrian proceedings and the probable outcome of the Austrian proceedings.

10. Prior to a directions hearing before Kelly J. on 3rd June, 2011, it appears that the parties agreed that the same approach should be taken at the hearing of the application for recognition and enforcement herein to the disputes in relation to Austrian law, as had been taken in relation to foreign law disputes in proceedings heard and determined by Kelly J. in Brostrom Tankers AB v. Factorias Vulcano SA [2004] 2 I.R. 191. That was an application to enforce a New York Convention award in an international arbitration pursuant to s. 7 of the Arbitration Act 1980. In the affidavits filed in those proceedings, there was conflict between Spanish and Norwegian lawyers on questions of Spanish and Norwegian law. The approach suggested by Kelly J. and adopted by the parties in those proceedings is recorded by Kelly J. in his judgment at p. 196 in the following terms:-

“Without, therefore, deciding any of these vexed questions of foreign law, I am now going to decide whether, even if they were all decided in favour of the defendant, it would provide a basis for refusing enforcement of the award.

If I decide that it would, I will then have to hear the cross-examination of the foreign lawyers and decide whether as a matter of fact the plaintiff or the defendant's experts are correct in their opinions as to the relevant legal questions.

If I decide to the contrary, then the matter is at an end. That is so because, even with all of the foreign legal questions decided in favour of the defendant, it would not provide a basis for refusing enforcement under s. 9(3) of the Act of 1980.”

Legislative Framework

12. Articles 35 and 36 of the Model Law govern the issues which must be determined on this application. They provide:

Article 35. Recognition and enforcement

(1) An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.

(2) The party relying on an award or applying for its enforcement shall supply the original award or a copy thereof. If the award is not made in an official language of this State, the court may request the party to supply a translation thereof into such language.

Article 36. Grounds for refusing recognition or enforcement

(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only:

(a) at the request of the party against whom it is invoked, if that party furnishes to the competent court where recognition or enforcement is sought proof that:

(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or

(iv) the composition of the Arbitral Tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

(b) if the court finds that:

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

(ii) the recognition or enforcement of the award would be contrary to the public policy of this State.

(2) If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.”

14. In summary, TPSA contends that this Court ought to refuse recognition or enforcement of the Partial Award in this jurisdiction upon the basis that:-

(i) TPSA was unable to present its case (Article 36(1)(a)(ii) of the Model Law);

(ii) the composition of the Arbitral Tribunal and/or the arbitral procedure were not in accordance with the agreement of the parties or, failing such agreement, with the law of Austria (Article 36(1)(a)(iv) of the Model Law);

(iii) it would be contrary to the public policy of Ireland to recognise or enforce the Partial Award (Article 36(1)(b)(ii)). The factual basis of this ground is similar to those of (i) and (ii). It was submitted that an opportunity to present one’s case to an independent Arbitral Tribunal forms part of the public policy in Ireland.

16. DPTG, in summary, submits that:-

(i) Each of the grounds relied upon by TPSA pursuant to Article 36(1) are without foundation;

(ii) that this Court should refuse the application for adjournment pending the determination of the Austrian proceedings. It submits that the expert opinions of TPSA’s Austrian lawyers, when properly analysed, do not establish reasonable or substantial grounds in favour of TPSA succeeding to set aside the Partial Award in the Austrian proceedings;

(iii) DPTG submits that if this Court were to exercise its discretion to adjourn its decision on recognition and enforcement pending a determination of the Austrian proceedings, that it should now

(a) make an order for the recognition and enforcement of part of the Partial Award; and

(b) should make an order requiring the provision of security.

Austrian Proceedings

17. The parties appear to be in agreement that the jurisdiction of the Austrian Courts to set aside the Partial Award is governed by s. 595.1 of the former Austrian Code of Civil Procedure (“the CCT”). This provides:-

“1. The award shall be set aside,

(1) if an arbitration agreement according to Section 577 does not exist, if the arbitration agreement has become invalid before the making of the award or ceased to have effect for the particular case or if a party was unable to conclude the arbitration agreement because of its status;

(2) if the party applying to have the award set aside was unable to present its case in the proceedings before the arbitrators or if required by statute to be represented by an agent or guardian was not so represented in those proceedings unless in the latter case the procedure has been subsequently properly ratified;

(3) if statutory or contractual provisions regarding the composition of the arbitral tribunal or the method of reaching a decision have been infringed or if the original of the award has not been signed in accordance with the provisions of Section 592(2);

(4) if a challenge to an arbitrator has been rejected unjustifiably by the arbitral tribunal;

(5) if the arbitral tribunal dealt with matters beyond those referred to it;

(6) if the award is incompatible with the basic principles of the Austrian legal system or if it infringes mandatory provisions of the law, the application of which cannot be set aside by a choice of law of the parties even in a case where a foreign contact according to Section 35 of the International Private Law Act is involved;

(7) if the conditions are present in which a request can be made under Section 530(1) figures 1 to 7 for a Court judgment to be set aside and the case re-opened.”

“36. Below is a synopsis of the fundamental defects in the Award that make up the principal grounds for setting aside in the Austrian Setting Aside Proceedings, along with the Austrian statutory grounds for the setting aside of the Award:

(a) The Award violates the prohibition of arbitrariness and thus also contradicts the basic principles of the Austrian legal system (section 595 paragraph 1(6) of the CCP);

(b) The value of DPTG’s performance – DKK 126,369,487 (approximately €17 million) – is in such a gross disparity to the alleged payment claim of DPTG – approximately DKK 4,600,000,000 (approximately €616 million) (which consists of the amounts for Phase 1, Phase II and the amounts already paid by TPSA in the past) – that this amounts to usury under Austrian law by reason of the lack of proportionality between the two sums and therefore must be considered a violation of the basic principles of the Austrian legal system (section 595 paragraph 1(6) of the CCP);

(c) TPSA was unable to present its case (section 595 paragraph 1(2) of the CCP);

(d) The Tribunal dealt with matters beyond those referred to it by applying section 273 of the CCP (section 595 paragraph 1(5) of the CCP);

(e) The Tribunal was not properly composed when passing its decision, and TPSA’s challenges to the members of the Tribunal were unjustifiably rejected, which means that, pursuant to section 595 paragraphs 1(3) and 1(4) of the CCP, the Award has to be set aside.”

19. In response, Mag. Florian Haugeneder, a lawyer acting for DPTG in Austria, has sworn an affidavit in which he exhibits a detailed joint legal opinion from Dr. Paul Oberhammer and Dr. Walter H. Rechberger, both highly renowned experts in the field of Austrian arbitration and civil law. He summarises those opinions as confirming, “that no good legal basis exists for setting aside the Award”.

20. In response, the second affidavit of Dr. Christian Aschauer exhibits legal opinions in relation to the Austrian proceedings, one each from Professor Gert Iro from the University of Vienna; Professor Marianne Roth from the University of Salzburg and Professor Bernd-Christian Funk from the University of Vienna. Each of these persons appears to be a leading expert in Austrian civil and constitutional law. Those opinions deal with different aspects of the challenge in the Austrian proceedings.

21. Following the order of the grounds set out at para. 36 of the first affidavit of Dr. Aschauer, the views expressed by the experts may be shortly summarised as follows.

22. Dr. Roth, at paras 171 to 175 inclusive, of her opinion, sets out her understanding of the principles relating to the contention that the Award violates the prohibition of arbitrariness and, thus, also contradicts the basic principles of the Austrian legal system (s. 595(1)(6) CPC) and concludes at para. 175:

“175. The interpretation of the revenue sharing clause by the Arbitral Tribunal results in a Partial Award that is unjustifiable and “objectively untenable” in light of the generally recognized principles of interpretation and therefore results in an arbitrary decision that is to be set aside according to §595/1 (6) CPC.”

“133. Thus, the conditions to assume that the NSL Contract, as interpreted by the Arbitral Tribunal, is usurious and a violation of fundamental principles of Austrian law within the meaning of § 595, para. 1, no. 6 (old version) of the Austrian Code of Civil Procedure, are clearly fulfilled.”

“. . . that the prohibition of usury is of a public policy character because it has the purpose of protecting the society and its legal principles from the abuse of private autonomy.”

“99. Therefore, the violation of the prohibition of usury is a violation of the public order and in case of arbitral awards such a violation requires the setting aside of the award according to § 595/1 (6) CPC as well as a refusal to recognise and enforce the arbitral award respectively. In the present case the delivery of DPTG and the awarded sum is of such flagrant imbalance that the Partial Award constitutes a violation of the Austrian basic values and, accordingly, is to be set aside.”

“The prerequisites to a finding of usury under sec. 879(2)(4) Austrian Civil Code have likewise been met.”

“121. According to §595/1 (2) CPC an award must be set aside if the party requesting the setting aside of the award was not granted the right to be heard in the proceedings before the arbitrators. Therefore, violation of the right to be heard is a ground for setting aside an award. The Austrian Supreme Court established with its RS0045092 a restrictive approach. Accordingly, the arbitral award will only be subject to challenge where the parties were not granted their right to be heard at all.

122. However, this approach has been heavily criticized by legal commentators. In terms of standards of Article 6 ECHR the approach of the Austrian Supreme court appears outdated.”

“138. Therefore, the only proper way to eliminate the remaining uncertainties would have been to obtain a further expert opinion. The surprise decision by the Arbitral Tribunal to apply §273/1 CPC constitutes a violation of the right to be heard pursuant to Article 6 ECHR and thus renders the decision challengeable under § 595/1 (2) of the Austrian CPC and unenforceable pursuant to Art. V/1, letter b, of the New York Convention.”

“193. Even if the Arbitral Tribunal addressed part of TPSA’s arguments, it did not properly examine TPSA’s main arguments as well as TPSA’s alternative submission regarding the reduction of the revenue share. Pursuant to § 595/1 (2) and (6) CPC a violation of the right to a fair trial and the right to be heard within the meaning of Art. 6 ECHR is also a ground for the setting aside of an award. Therefore, there is a reasonable chance that the partial award, which is the consequence of several violations of TPSA’s right to be heard and to obtain a fair trial, will be set aside.”

“30. The procedural irregularities asserted in the present case and the errors in the arbitral tribunal’s decision are so severe, that, when taken together (both in and of themselves and in their impacts) they constitute infringements of elementary principles of a fair trial and of the right to be heard, including in terms of the substantive decision, and the arbitral award must be specifically regarded as incompatible with the fundamental values underlying the Austrian legal system. For this reason, this arbitral award must be set aside in accordance with sec. 596 (1) (2) (3) (4) and (6) Austrian CPC.”

“ . . acted ultra vires so that the grounds for setting aside the Partial Award according to § 595/1 and (5) CPC are also met.”

“209. For the reasons set out above, the improper composition of the arbitral tribunal leads to the legal consequence that the award is to be set aside under § 595/1 (3) and (4) CPC.”

“… [T]hat the Partial Award of 24 August 2010 is to be set aside in the proceedings currently pending before the Vienna Commercial Court and in my view, there is a reasonable chance that it will be set aside.”

32. Each of the opinions of Professor Iro, Professor Roth and Professor Funk were given following the consideration of the joint opinion of Professor Oberhammer and Professor Rechberger.

33. A second affidavit was then sworn and filed by Mag. Florian Haugeneder, in which he disputes many of the opinions and conclusions expressed by Dr. Aschauer, Professor Roth, Professor Iro and Professor Funk. He does so, in part, in reliance on his own opinion and, in part, on the joint opinion of Dr. Oberhammer and Professor Rechberger, already exhibited by him.

34. Having regard to the agreement of the parties as to the basis upon which I should firstly decide this application, I do not propose referring, at this stage, to the opinion on Austrian law or on the likelihood of success of the Austrian proceedings, as expressed on behalf of DPTG, save to the extent already set out.

Order of Decisions to be Taken

35. Both parties seek to have the court take a decision on the application for recognition and enforcement and TPSA’s defence that recognition and enforcement should be refused in reliance upon Article 36(1)(ii) and (iv). TPSA presented its application for an adjournment under Article 36(2) as an alternative.

36. In my judgment, on the facts herein, the court must firstly determine TPSA’s application for an adjournment of its decision on recognition and enforcement pursuant to Article 36(2), for the following reasons.

37. What a court is permitted to do, under Article 36(2), is to adjourn its decision on enforcement, as distinct from placing a stay on a decision in favour of enforcement already reached. Notwithstanding the pro-enforcement policy underlying Articles 35 and 36, this appears to be the correct construction, having regard to the wording used in Article 36(2) and its interconnection with Article 26(1)(b) which permits refusal of enforcement where the award, inter alia, has been set aside or suspended by a court of the country in which, or under the law of which the award was made. The purpose of Article 36(2) appears to be to avoid the enforcement of an award and then a subsequent decision of the home court that the award be set aside.

38. I am reinforced in the view I have reached that it is an adjournment of the decision of the Court rather than any stay on a decision already made by the judgment of Charron J.A. in the Court of Appeal for Ontario in Dalimpex Ltd. v. Janicki and Others (30th May, 2003) Case 509 on UNCITRAL’s Clout database, paras. 4 and 54 to 61, and an observation of Tomlinson J. in the High Court in England in Ipco (Nigeria) Ltd. v. Nigerian National Petroleum Corp. [2009] 1 All ER (Comm) 611, at para. 15. In each, the judge made clear that it is the decision on enforcement which must be adjourned.

39. The difficulty which the Court is presented with, in the present application, is that the parties have agreed that all issues, including the determination of the application for an adjournment should, in the first instance, be determined upon an assumption that the statements of Austrian law, as set out by the experts retained on behalf of TPSA, is correct. It was further agreed that if I were to decide to grant an adjournment based upon such uncontested statements, that there should then be cross-examination of both sets of experts for the purpose of this court determining, as a question of fact, any relevant issues of Austrian law in accordance with the approach of Kelly J. in Brostrom as set out above.

40. Notwithstanding this agreement, Mr. Gallagher S.C., on behalf of TPSA, submitted that it was neither necessary nor appropriate for the court to determine questions of Austrian law in relation to the application for an adjournment under Article 36(2). Rather, he submitted that the court need only be satisfied on the expert opinions adduced that there are reasonable or substantial grounds for contending that the Austrian proceedings may succeed in having the Partial Award set aside by the Austrian courts.

41. That submission appears to me correct. 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 adjournment. Correctly, Mr. Gallagher did not seek to so submit. I was referred to an observation to similar effect by Tuckey L.J. in the Court of Appeal on the appeal from Tomlinson J. in Ipco (Nigeria) Ltd. v. Nigerian National Petroleum Corporation[2009] 1 All ER (Comm) 611 at 661:

“. . . The mere fact that a challenge has been made to the validity of an award in the home court does not prevent the enforcing court from enforcing the award if it considers the award to be manifestly valid (see Soleh Boneh International Ltd v. Government of the Republic of Uganda and National Housing Corp [1993] 2 Lloyd’s Law Reports 208 at 212.”

“In my judgment two important factors must be considered on such an application, although I do not mean to say that there may not be others. The first is the strength of the argument that the award is invalid, as perceived on a brief consideration by the Court which is asked to enforce the award while proceedings to set it aside are pending elsewhere. If the award is manifestly invalid, there should be an adjournment and no order for security; if it is manifestly valid, there should either be an order for immediate enforcement, or else an order for substantial security. In between, there will be various degrees of plausibility in the argument for invalidity; and the Judge must be guided by his preliminary conclusion on the point.”

“What we are not asked to do is to decide the point ourselves, here and now. So I must be careful to express no opinion on it, except to say that in my judgment it is seriously arguable although in a short compass. Indeed the very fact that two such eminent teachers of commercial law take opposite views shows that to be the case.”

45. By reason of the agreement already reached and the reasons next set out, it appears to me that I must now give DPTG an opportunity to consider whether there are any further submissions they wish to make to the Court in reliance upon the affidavits and exhibits (including the joint opinion) already filed, but without an opportunity of cross-examining any of the experts in Austrian law prior to making a determination as to whether or not TPSA have, on the affidavits already filed, satisfied the Court that they have reasonable grounds or a seriously arguable case for contending that the Partial Award may be set aside in the Austrian proceedings.

46. Mr. O’Donnell S.C., on behalf of DPTG, made full submissions at the hearing that the expert opinions of Professor Roth, Professor Iro and Professor Funk did not, even in their own terms, set out substantial or reasonable grounds for contending that the Partial Award may be set aside by the Austrian courts. I do not accept that submission. The views expressed are by persons expert in the relevant field of law and on my consideration appear to include reasonable grounds or a seriously arguable case for setting aside the Partial Award. In expressing this view, I am not determining that each and every ground appears seriously arguable. However, it does not appear that I should express a view on the individual grounds. The opinions expressed may of course be ultimately proven incorrect by the decision of the Austrian courts as happens in relation to differing opinions properly held and expressed on the outcome of proceedings. I have formed this preliminary view in the knowledge that the views expressed are disputed by relevant experts retained by DPTG but without submissions relating to the content of the joint opinion. I am conscious that Mr. O’Donnell, in making the submission, was limited in the material to which he could refer by reason of the agreement reached and did not have the opportunity to refer to the differing views in the affidavits of Mag. Florian Haugeneder and the legal opinion from Dr. Paul Oberhammer and Dr. Walter H. Rechberger. That is material before the court on the application for the adjournment and hence it appears to me that DPTG should be given an opportunity to consider whether they wish to make any additional submission based on that material and in the context of the approach set out in this judgment prior to my taking a final decision on the adjournment application. In accordance with this decision, any assessment of any further submissions will not involve this Court in resolving disputes between the experts on questions of Austrian law or even determining the relative strengths of the differing opinions. It will be confined to a summary or ‘brief’ consideration as put by Staughton L.J.

47. I also consider that there may be additional factors which will be relevant to a judge exercising his or her discretion under Article 36(2) which will vary, having regard to the facts of the case. I have had regard to the fact that the proceedings in Austria were commenced within a short time of the finalising of the corrected Partial Award. Also, that the Austrian proceedings have been pursued expeditiously and preliminary hearings have already taken place before the Court of First Instance. Finally there is an overlap between some of the grounds relied upon by TPSA in the Austrian proceedings and in this application which the Austrian Courts may be better placed to resolve. In such circumstances, in my judgment, I should adjourn the decision of this Court on enforcement if satisfied that TPSA have demonstrated that they have reasonable grounds or a seriously arguable case for the setting aside of the Partial Award in the Austrian proceedings. Nothing turns on the different formulation of the criteria.

48. There are two further issues which were fully argued before me and which would become relevant in the event that I determine that I should grant an adjournment pending the determination of the Austrian proceedings. I propose setting out my conclusions on them now.

49. First, DPTG, in reliance upon the Ipco decision of the English courts already referred to, submitted that even if I decide to adjourn the decision on the application for enforcement of the Partial Award, that by reason of the fact the TPSA, in the arbitration, had acknowledged that there is money due to DPTG pursuant to the revenue sharing clause, and the dispute only related to the amount, that this court should now make an order for enforcement of part of the Partial Award. This was referred in the Ipco judgment as “partial enforcement”.

50. The factual basis of the submission is that the Arbitral Tribunal, at para. 214 of its Partial Award, records the response of TPSA to the claim of DPTG as inter alia to :

“(c) Reject all principal claims which DPTG submitted with regard to the accounting periods November 1999 to June 2004 that are

- above the principal amount of DKK 313, 490,838 (in words: three hundred thirteen million four hundred ninety thousand eight hundred thirty-eight Danish Kroner) in the aggregate; or

. . .”

51. Section 23(1) of the Arbitration Act 2010, is relevant to this issue as it governs the nature of the Order to be made by the High Court when it gives leave to enforce an award pursuant to Article 35 of the Model Law. It provides:

“An award (other than an award within the meaning of section 25) made by an arbitral tribunal under an arbitration agreement shall be enforceable in the State either by action or, by leave of the High Court, in the same manner as a judgment or order of that Court with the same effect and where leave is given, judgment may be entered in terms of the award.”

52. Accordingly, where the Court gives leave to enforce an award pursuant to Article 35, it then may (and normally will) enter a judgment “in terms of the award”. This is the mechanism by which the award is enforced in Ireland. If leave is ultimately given to enforce in these proceedings, then judgment will be entered in favour of DPTG against TPSA “in terms of the award”.

53. The Irish Court, as the enforcing court, is limited to entering judgment “in terms of the award”. In my judgment, the “award” for the purposes of this provision is the order made by the arbitral tribunal. The Partial Award is a reasoned award running to 1050 paragraphs. It is only in the last of these that it makes its award and “orders as follows”. A similar view was taken in relation to the Court’s jurisdiction being limited to enter judgment “in terms of the award” pursuant to a similar provision in the English legislation at para. 18 of the judgment of Tuckey L.J. in the Ipco decision already referred to and upon which Mr. O’Donnell relies.

54. Insofar as s. 23(1) of the Act of 2010 permits this Court to enter judgment “in the terms of the award”, it is to enter judgment for an amount which the Partial Award, on its face, directs TPSA to pay to DPTG. The dispositive part of the corrected Partial Award directs the payment of specified money sums under five separate headings, for principal, interest and costs. If DPTG was now seeking an order for the enforcement of one of those specified amounts, I am satisfied that the Court could give leave for enforcement of that part of the Partial Award and enter judgment for one or more of the amounts specified and at the same time adjourn its decision on the application to enforce the remainder of the amounts awarded. However, that is not DPTG’s application.

55. I have noted that in the Ipco judgment, the Court of Appeal was prepared to look beyond the actual formal dispositive part of the award for payment of a total sum and to have regard to the summary specifying the individual amounts awarded to Ipco at para. 29.1 of the award under each head of claim. The dispositive part of the award ordered the payment of a single sum of $152,728,986.4355 being the total of the individual amounts referred to at paragraph 29.1. The Court of Appeal upheld a decision to enforce a partial award being the amounts awarded in relation to claims 2 and 3 in the summary at paragraph 29.1 and to adjourn the decision on enforcement of the amounts ordered to be paid in relation to the remaining claims

56. If this Court were to follow that approach, it might be permissible to have regard to the breakdown of the total amount for principal of DKK1, 998,422,812 set out at para. 912 of the Partial Award as corrected under N912 in the corrected Award. It is unnecessary for the purposes of this application to determine whether this Court, as enforcing court, could pursuant to s.23(1) of the Act of 2010 enter a judgment for only one or more of the figures set out at N912 without entering judgment for the balance. I propose leaving that issue for decision on an application where it is material to the facts. The part of the Partial Award which Mr. O’Donnell submits should now be enforced and for which judgment would have to be entered is not an amount which appears in the table at N912. It is an amount recorded by the Arbitral Tribunal as implicitly not in dispute. However, there is no order of the Arbitral Tribunal in the Partial Award separately directing the payment of DKK 313, 490,838 such that any judgment in that amount could be considered a judgment “in terms of the award” for the purposes of section 23(1) of the Act of 2010.

57. Accordingly, I have concluded that this Court does not have jurisdiction to give leave to enforce that part of the Partial Award in respect of which DPTG contends there is no contest.

58. The second consequential issue is whether the Court should award security if it determines to grant an adjournment of its decision on enforcement pending determination of the Austrian proceedings.

59. In my judgment, if I grant an adjournment, this is a case in which there should be an order for security. As already indicated, my present view on the submissions made and materials considered is that TPSA has adduced evidence of reasonable grounds or a seriously arguable case in favour of the setting aside of the Partial Award. However, I am also aware, from a consideration of the affidavit of Mag. Florian Haugeneder, albeit without consideration of the content of the joint opinion referred to, that there exists a joint opinion from two distinguished Professors, “that no good legal basis exists for setting aside the award”. In my judgment, the evidence which I have considered does not permit me to conclude that the Partial Award is manifestly invalid as that term was used by Staughton L.J. in Soleh Boneh, and hence I should consider the question of security. The period to which the award relates, the duration of the arbitration and the response of TPSA as recorded at para. 214 of the Partial Award, the timing of proceedings in Austria and the nature of TPSA’s assets in this jurisdiction, lead me to a conclusion that there should be security.

60. Mr. Cowey, solicitor for DPTG in this jurisdiction, in his affidavit delivered on 23rd February, 2011, states that the assets of TPSA in this jurisdiction are monies receivable by it for “telephone traffic”. The then estimate of experts retained by DPTG was that the net sum receivable was in excess of €3.3 million. He also refers to transfer of assets by TPSA from the Netherlands. Dr. Aschauer, in a subsequent affidavit, does not appear to dispute either the nature of the assets nor the estimate given. Rather, he makes the point that it is a very small sum relative to the principal amount of the Partial Award, and that DPTG would be fully compensated by the payment of interest.

61. Having regard to the estimate and nature of the assets against which DPTG may ultimately seek to enforce the award if successful in this application and the timescale of the decision of the Court of First Instance in Vienna, either at the end of this year or early next year, if an adjournment is granted, I would propose ordering security in the initial sum of €1.5 million. I would also propose granting liberty to apply in relation to the continuation of the adjournment pending the determination of any appeal and/or for further security in the event that decision of the Court of First Instance in Vienna is adverse to TPSA. I will also hear the parties on the nature of any security to be given.