“Article V (1) Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: … (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
“The defendant shall pay the plaintiff the amount of damages of 4,089,716,666.00 CZK. The defendant is liable to pay compensation to the plaintiff with interest on the arrears for the period from1 July 1992 to20 June 2007 of CZK 4,244,879,686.00. The defendant shall pay the plaintiff interest on the amount of arrears of CZK 1,287,877.00 per day, starting on1 July 2007 until payment and the amount of CZK 58,130,213.00 from14 July 2007 until payment, at the repo rate set by the Czech National Bank plus 7 percentage points on the basis that in each calendar half year, in which the debtor is in default, the arrears interest rate will be based on the repo rate set by the Czech National Bank valid for the first calendar day of the half-year.”
“8. The New York Convention (on the Recognition of Enforcement of Foreign Arbitral Awards) 1958 superseded the Geneva Convention (on the Execution of Foreign Arbitral Awards) 1927, which provided in Article 1 that a relevant Convention award would “be recognised as binding and … be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the … award [had] been made in a [Convention] territory” but: “To obtain such recognition or enforcement, it shall, further, be necessary: … (d) that the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appel or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of testing the validity of the award are pending.” 9. It was further provided by Article 3 that: “If the party against whom an award has been made proves that under the law governing the arbitration procedure there is a ground … entitling him to contest the validity of the award in a Court of Law, the court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.” 10. The New York Convention, upon which the UK 1996 Act is based, contained in almost identical wording the provisions of s103(2)(f) in Article V(1)(e), and s103(5) is in almost identical terms to Article VI. It is common ground that the intention of the New York Convention was to make enforcement of a Convention award more straightforward, and in particular to remove the previous necessity for a double exequatur – i.e. the need, before a Convention award could be enforced in any other jurisdiction, for it to be shown that it has first been rendered enforceable in the jurisdiction whose law governs the arbitration (the "home jurisdiction" – an expression which covers the case both where the law of the seat and the governing law of the arbitration are the same and where (as for example in the Indian Supreme Court decision of Oil & Natural Gas Commission v Western Company of North America AIR 1987 SC 674 (“ONGC”), to which I shall refer below) the arbitration which had its seat in London was governed by Indian law. See for example what both sides agree is the seminal commentary on the New York Convention, albeit written in 1981, The New York Arbitration Convention of 1958 – Towards a Uniform Judicial Interpretation by Albert Jan van den Berg (VDB) at 266: “Another improvement of the New York Convention's scheme for enforcement of an award is the elimination of the “double exequatur”
“… In effect the party who has obtained an award has the benefit of a presumption of validity and it is for the party resisting recognition or enforcement to prove otherwise.”
“I am satisfied that the issue as to whether the ICC Award has become binding on the parties is one for me, by way of deciding whether the UK court is in a position to recognise and enforce a Convention award, and not by way of my assessment of whether the Tanzanian Court would consider that it is binding.”
“An award on a submission on being filed … shall, unless the court remits it to the reconsideration of the arbitrators or umpire or sets it aside, be enforceable as if it were a decree of the court.”
“The VDB view that there was and should be an autonomous interpretation of binding, is best analysed by differentiating between ordinary recourse and extraordinary recourse. The former, which may not be permitted by the terms of the relevant agreement between the parties or the law governing the arbitration, would ordinarily be subject to a time limit, after which no such ordinary recourse (if otherwise available) would be permitted. Then there is the possibility of extraordinary recourse, which would be some limited challenge to the award, in the courts of its home jurisdiction, by reference to the restrictive terms of the New York Convention. Once ordinary recourse is excluded, the possible availability of extraordinary recourse does not prevent an award from being, or having become, binding. Mr Diwan submits that, although it is clear that there was sufficient discussion before the finalisation of the terms of the New York Convention to prevent any such agreed definition being included in the Convention, Article 31 of the Vienna Convention allows for such commonsense and logical interpretation of the Convention notwithstanding. Such autonomous interpretation is entirely consistent with the admitted purpose of ending the need for a double exequatur, and is inconsistent with any extension of the idea that an award is “lifeless”, as per paragraph 14 of ONGC, until enforced by its country of origin, except insofar as that can be interpreted as simply referring to enforcement within that country.” (Emphasis added)
“As I conclude, the binding effect of an award depends upon whether it is or remains subject to ordinary recourse. Once it is binding, it does not cease to be so as a result of some event in the home jurisdiction; and the absence of such impediment does not make it so.”
“… it should be observed that the distinction between ordinary and extraordinary means of recourse, as introduced by the Dutch delegate to distinguish between non-final and final awards, is typical for several Civil Law countries, but is unknown in many Common Law countries. Although varying from country to country in the Civil Law world, it can generally be said that ordinary means of recourse connote a genuine appeal on the merits, whilst extraordinary means of recourse are reserved for certain irregularities, especially the procedural ones, tainting a final decision.” (van den Berg, NYC, pp334-335) At the New York Conference of 1958, the distinction between ordinary and extraordinary means of recourse was proposed for the term binding: the ordinary means of recourse were used for denoting a genuine appeal on the merits of the arbitral award to a second arbitral instance or to a court. Extraordinary means of recourse were reserved for other irregularities, and especially the procedural ones, tainting a final decision. The latter means of recourse were meant to correspond to setting aside or equivalent proceedings. The distinction was proposed in order to make clear that if the award was still open to the possibility of another decision, it was not to be considered “binding”, whereas if it was open to the possibility of other means of recourse, this would not prevent the award from becoming binding. The expression "has not become binding in the sense that the award is still open to ordinary means of recourse" was finally not inserted. This must be deemed, however, not to be due to a rejection of the distinction as such. Rather, the expression was rejected because, in various countries, the distinction between ordinary and extraordinary means of recourse did not exist, or existed with different meanings. The essence of the distinction may be deemed to have been retained. This can also be inferred from the text of Article V(l) (e) as the concept behind extraordinary means of recourse is covered by the second part of Article V(l) (e) and Article VI which refer to the setting aside of the award. The idea behind the ordinary means of recourse, i.e., the appeal on the merits to a second arbitral instance or to a court, can then be deemed to be covered by the first part of Article V(1) (e), viz., the term “binding”
“The parties have also agreed that the arbitral reward (sic) will be submitted to a review by other arbitrators whom the parties appoint in the same manner if an application for review has been submitted by the other party within 30 days from the date on which the applicant party received the arbitral award. Articles II-IV of this agreement apply similarly to the review of the arbitral award. If the review application of the other party has not been submitted within the deadline, the award will enter into effect and the parties voluntarily undertake to implement it within the deadline to be determined by the arbitrators, in default of which it may be implemented by the competent court.”
“27. The parties shall be free to agree in the arbitration agreement on the review of the award done by other arbitrators upon application of any of them or both of them. Unless otherwise agreed in the arbitral agreement such application for review shall be sent to the other party within thirty (30) days after service of the arbitral award on the applicant. The review of an award shall be part of the arbitral proceedings to which the provisions of this Act shall apply accordingly. … 28(2) Upon being served the award that is not subject to review under Section 27 hereof or in respect of which the term for lodging the application for revision under section 27 expired without such application being lodged, shall become legally valid and enforceable by the Courts of law. …”
“(1) CZK 4,089,716,666.00 in damages; (2) Interest of CZK 4,244,879,686.00 for the period from1 July 1992 to30 June 2007 ; (3) Interest of CZK 1,287,877.00 per day starting on1 July 2007 until payment; (4) Interest on CZK 58,130,213.00 from15 July 2007 at the Czech National Bank repo rate on 1 January and 1 July of each year for the respective half calendar year thereafter plus 7% until payment.”
“The Government: I. Takes Notice of the proposal for further actions in the matter of the dispute for compensation of damages between Diag Human SE and the Czech Republic – Ministry of health in relation to the issuance of the Final Arbitration Award contained in Part III of the document file no. 1278/08; II. Agrees with filing a request for the revision of the Final Arbitration Award issued on4 August 2008 in the Arbitration Proceedings ad hoc concerning the dispute on damages compensation between Diag Human SE and the Czech Republic – Ministry of Health, file no. Rsp 06/2003. III. Asks the Minister of Health to: 1. Prepare a request for the revision of the Final Arbitration Award 2. Appoint an arbiter in accordance with Article V of the Arbitration Agreement executed between the contracting parties: the Czech Republic – Ministry of Health, and Diag Human SE, pursuant to the provisions of Section 2 of Act no 216/1994 Coll., on Arbitration Proceedings and Execution of Arbitration Awards, as amended, dated18 September 1996 3. Arrange for the delivery of the request for the revision of the Final Arbitration Award to Diag Human SE, in cooperation with the Minister of Foreign Affairs and the President of the Office of the Government Representation in Property Affairs.”
“Czech Republic – Ministry of Health, MUDr Tomas Julinek, MBA, Minister”
“Czech Republic – Office of the Government Representation in Property Affairs, Ing Miloslav Vanek, general director”
“Authorization I hereby authorize the following employee of the Office of the Government Representation in Property Affairs (hereinafter referred to as the “Office”) JUDr. Petr Posledni, born on15 June 1962 residing in Babice 136, district of Prague – East First Deputy to the General Director of the Office, who is in charge of the management of activities pertaining to the Regional Department for Prague, to act in terms of making legal acts on behalf of the Czech Republic in matters relating to the Office to the extent of all rights granted to, and duties imposed on, the General Director through Act No. 201/2002 Coll, on the Office of the Government Representation in Property Affairs, as well as by the Organizational Rules of the Office as amended. Further, I hereby authorize the above named person to act on behalf of the Office in all cases where such acts bind the Office to the extent of the authorizations granted by the General Director, as set out by the Organizational Rules of the Office. The above named person is authorized to deputize for the General Director at the time of his absence to the full extent pursuant to the Organizational Rules. The above named person is obliged to undersign documents in such a manner that, to the full name and designation of the function of the General Director, he shall attach his own surname and indicate that he acts on behalf of the General Director …”
“… I hereby authorise the employee of the Office of the Government representation in Property Affairs, the attorney-at-law JUDr. Petr Posledni, born15 June 1962 Residing in Babice 136, district Prague-East for all actions on behalf of the State in the proceedings before Courts, arbitration panels, administrative bodies and other authorities in the cases, in which in accordance with the Act no. 201/2002 Coll. on the Office of the Government Representation in Property Affairs, the State is represented by the Office of the Government Representation in Property Affairs. …”
“It must be stated that the situation associated with the Arbitral Proceedings is not usual in the Czech Republic and, as far as I am aware, it has not been addressed in any other case in the practice of the OGRPA or of the Ministry of Health. For this reason, I do not find the plurality of legal opinions surprising. Since the Defendant expected that the Claimant would try to take advantage of this situation and question the requests for review filed by the Defendant, it took a precautionary measure. That is why there were four requests for the review, all made on the same day but with some different signatories. For reasons of prudence, the requests were signed by (i) the Minister of Health, (ii) the General Director of the Office of OGRPA, and (iii) an employee OGRPA authorised by the General Director to act for the State. All three variants presented in the proceedings before this Court were thus respected. In spite of that the Claimant still tries to contend before this Court that the Defendant did not file effective requests for review.”
“… During the entire proceedings, [Diag Human] also attempted to argue that the Final Arbitral Award was, in principle, in legal force and enforceable and, consequently, the given proceedings could not be held and, in consequence, it was not necessary to appoint another arbiter. … In contrast, the court was not and is not competent to assess whether or not the arbitration proceedings have been terminated. The final arbitral award was rendered on4 August 2008 and both parties delivered to each other an application for review of the final arbitral award within a deadline of 30 days and, at the same time, each appointed one arbitrator to the review arbitration tribunal. The Czech Republic appointed Doc JUDr Milan Kindl and Diag Human SE appointed Mr. Damiano Della Ca. While the court considers it proven, based on the evidence taken, that Diag Human SE withdrew its application for review of the Final Arbitral Award on30 March 2010 , however, this can have no effect on the legal force or enforceability of the arbitral award. The court is of the opinion that only the review arbitration tribunal can make a decision on the legal force and enforceability of the Final Arbitral Award, where, in the case of Diag Human SE, it may decide on discontinuation of the review arbitration proceedings and, in the case of the Office for the Government Representation in Property Affairs, the Prague Office, it shall assess the timeliness of its application and whether it was lodged by a legitimate entity; only then may it proceed with hearing the case in rem.”
“… 3.3 … the issue when an arbitral award is binding pursuant to the New York Convention is in the legal doctrine not by any means indisputable: 3.3.1 According to the prevalent opinion (Czernich in B/N/G/S, International Civil Procedure Law, Art. V of the New York Convention, comment 47 with other evidence; other multiple evidence in Solomon, The Binding Nature of Arbitral Awards 97, FN 7), the binding nature of an arbitral award must be stipulated in accordance with the law applied to the respective procedure. According to this procedure, the arbitral award is binding if it complies with all requirements to be acknowledged as enforceable according to the national law. 3.3.2 The proponents of the autonomous interpretation of the term “binding” hold the opinion that it is only the admissibility of appeal to an arbitration court of a higher instance or to a national court including the review of facts and legal issues (meant not in the sense of annulment, but “complete appeal”) which excludes a link to the arbitral ward (evidence in Schlosser, International Private Arbitration, comment 786, FN 7). In doing so, the proponents of the assumption of an autonomous interpretation argue that international enforcement of arbitral award may again depend on double exequatur if the country of origin of the arbitral award links its binding nature to exequatur. 3.4 A more detailed analysis of this issue is, however, unnecessary, because both interpretation options lead to the same result: 3.4.1 In case of an autonomous interpretation of the term “binding”, the arbitral award is binding if a due appeal against it to an arbitration court of a higher instance or to a national court with a detailed review from the legal and factual point of view cannot be lodged any more. 3.4.2 The same – which is acknowledged by the Enforcing Party – results from the applicable Czech Arbitration Procedure Act: According to Sections 27 and 28 of the Czech Arbitration Procedure Act quoted in Art. 2.4, an arbitral award which is contested by any of the Contentious Parties requesting review within the due period is not enforceable if – like in the case concerned – the Arbitration Agreement provides for such review. 3.4.3 The arbitral award is thus formally binding (only) when all procedural acts have been conducted in order for the arbitration court to be able to make a final decision concluding the arbitration procedure. If an appeal to an arbitration court of the “second instance” is admissible within arbitration procedure selected by the Contractual Parties, the dispute has not been finally decided according to the system of dispute settlement which was selected by the Contractual Parties and which is relevant for them. The lack of binding nature can be obviously deduced from Art. V of the Arbitration Agreement. If an application for review is not filed, “the finding (meaning: the arbitration award) shall become legally effective and the Contractual Parties shall be voluntarily obliged to enforce it within a period defined by arbitrators”
“Looking at the matter negatively a decision on procedure alone is not a decision on the merits. Looking at the matter positively a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned. If the expression “on the merits” is interpreted in this way, as I am clearly of opinion that it should be, there can be no doubt whatever that the decision of the Dutch Court of Appeal in the present case was a decision on the merits for the purposes of the application of the doctrine of issue estoppel.” [Lord Brandon @ p499 F] And per Lord Diplock at 494 A/B “It is often said that the final judgment of the foreign court must be “on the merits”
“The authorities show that in order to establish an issue estoppel four conditions must be satisfied, namely (1) that the judgment must be given by a foreign court of competent jurisdiction; (2) that the judgment must be final and conclusive and on the merits; (3) that there must be identity of parties; and (4) that there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings: see, in particular Carl Zeiss Stiftung v Rayner C Keeler Ltd (No 2)[1967] 1 AC 853 (“the Carl Zeiss” case), The Sennar (No 2)[1985] 1 WLR 490 ” [Clarke LJ @ para 50 of the judgment] And later, at paragraph 54: “The authorities establish that there must be “a full contestation and a clear decision” on the issue in question. That is made clear in the speech of Lord Wilberforce in the Carl Zeiss case and (as the judge observed in paragraph 36) was echoed by Lord Brandon in The Sennar (No 2). The cases also underline four further important features of the approach of the courts to issue estoppel, which I will consider in turn. They are as follows: i) It is irrelevant that the English court may form the view that the decision of the foreign court was wrong either on the facts or as a matter of English law. ii) The courts must be cautious before concluding that the foreign court made a clear decision on the relevant issue because the procedures of the court may be different and it may not be easy to determine the precise identity of the issues being determined. iii) The decision of the court must be necessary for its decision. iv) The application of the principles of issue estoppel is subject to the overriding consideration that it must work justice and not injustice.”
“11.26 Where, however, the successful party in an arbitration is seeking to enforce an award, the position is different. The first step is to determine in which country or countries enforcement is to be sought. To reach this decision, it is necessary to locate the State or States in which the losing party has (or is likely to have) assets available to meet the award. This usually calls for careful (and possibly difficult) investigative work. If enquiries suggest that assets are only likely to be available in one State, the party seeking enforcement of the award has no choice: for better or worse, he must seek enforcement in that State. Where there is a choice, the party seeking enforcement is able to proceed in one or more places as seems appropriate … 11.30 If, as often happens in international commerce, assets are located in different parts of the world, the party seeking enforcement of the award has a choice of country in which to proceed—a chance to go ‘forum shopping’, as it is sometimes expressed. In looking for the appropriate forum, not merely the location of assets but also the other factors already mentioned (such as the attitude of the local courts, the adherence of the target country to the New York Convention, and so on) must be taken into account.”
“It may well be that there is not absolute uniformity of approach to the Convention requirements. It would perhaps be surprising if there were …”
“Act 201/2002…. On the Office of the Government Representation in Property Affairs … PART ONE … CHAPTER II EXCLUSIVE JURISDICTION OF THE OFFICE Sec. 2 (1) In cases and subject to the conditions stipulated by this Act, the Office shall represent the State in proceedings before courts, Arbitration Bodies, administrative authorities, and other bodies in matters concerning the state’s property (hereinafter referred to as “property”) in the stead of the organisational units 2) authorised to manage that Property pursuant to a special legal regulation 3) (hereinafter referred to as “Relevant Organisational Units”). (2) When representing the State pursuant to paragraph 1, it shall act on behalf of the State. Its actions shall include all procedural tasks that could be executed in the proceedings by the Relevant Organisational Unit pursuant to a special legal regulation. Sec. 3 (1) The Office shall act (Sec 2) in the following proceedings… ... (b) Before…arbitration bodies, in matters concerning financial performance in excess of CZK 50,000,000 and in commercial matters of CZK 250,000,000. PART TWO ORGANISATION AND MANAGEMENT OF THE OFFICE AND THE STATE EMPLOYEES WORKING AT THE OFFICE Sec. 14 (1) The Office shall carry out its activities (…) through its regional offices operating at the seats of the regional courts and in the City of Prague, for the territorial districts of the regional courts and for the territory of the City of Prague. The regional offices shall also perform other tasks pursuant to this Act [Sec 1(2)(c)]. (2) When a regional office carries out the activities of the Office or performs other tasks pursuant to this Act (paragraph 1), the mailing address shall always be the address of that regional office. (3) The Office is led by its Director General, who is appointed and recalled from his position by the Minister of Finance; the Director General discharges his function within an employment relationship. … Sec. 16 (1) Only natural persons may be employees of the Office (hereinafter referred to as “Office Employees”) who possess integrity, are citizens of the Czech Republic, and possess full capacity to engage in legal acts. The condition as to integrity cannot be met by a person who has been finally convicted of an intentional crime and whose sentence was not expunged. (2) A qualification requirement for an Office Employee who is to engage in activities stated in the provisions of Sec. 3, 4, 6, 7, 9, 11, 13, 13a, 13b, and 13d, or who is to engage in a similar activity while executing other tasks of the Office (Sec. 18, 19), is tertiary education obtained in a masters programme in the field of law at a tertiary educational institution in the Czech Republic, and at least three years of experience in the field of the expected type of work following the completion of the prescribed education. … PART THREE COMMON PROVISIONS … Sec. 21 (1) If the Office commences acting in proceedings pursuant to Sec. 3 and 4 or pursuant to Sec. 6 and 7, where the proceedings are already under way, the outcomes of such proceedings obtained up to that point shall stand and the effects of any procedural steps made up to that point shall apply. The same shall apply if the Office stops acting in such a capacity during proceedings, in cases stipulated by this Act (Sec. 23(4) and (5)). (2) If the Office commences acting in proceedings pursuant to Sec. 3 and 4 or pursuant to Sec. 6 and 7, it shall act in that capacity until the proceedings are completed with final effect, including any extraordinary appeal proceedings, unless otherwise stipulated below (Sec. 23(4) and (5)). (3) When the Office acts pursuant to Sec. 3 and 4 and pursuant to Sec. 6 and 7, any and all procedural steps made by the Relevant Organisational Unit in the proceedings shall be void. Any legal acts effected by the organisational unit outside of the proceedings in the periods specified above that contravene the steps taken by the Office in the proceedings, shall be void.”
“CHAPTER THREE Taking part in the proceedings Participants in the proceedings Section 21 (1) The following may act on behalf of a legal entity: a) its statutory body; if the statutory body comprises more natural persons then the legal entity is represented by its chairman or member authorised thereto … … (5) Everyone acting on behalf of a legal entity must demonstrate its entitlement thereto. Only one person is authorised to act on behalf of a legal entity in the same matter. Section 21a (1) The State is represented before the court by the following: a) Office of the Government Representation in Property Affairs set out by a special legal regulation, b) branch of the State applicable according to a special legal regulation in other cases. (2) If the Office of the Government Representation in Property Affairs is party to the proceedings on behalf of the state, an employee registered with the Office of the Government Representation in Property Affairs, authorised by its Managing Director, shall act on behalf of the State before the court. (3) If a branch of the State applicable according to a special legal regulation is a participant in the proceedings on behalf of the state, the head of the organisation branch of the State or an employee working with this or another organisation branch of the State authorised by the manager shall act on behalf of the State before the court. (4) Provisions of Section 21 Subsection 4 and 5 shall apply accordingly.”
“Persons Acting on Behalf of the State If the Office for Government Representation in Property Affairs (…) is called upon to represent the state in court proceedings, it is self-evident that the state’s procedural rights can be exercised, and its procedural duties discharged, only by individuals (natural persons). Section 21a(2) stipulates that acts on behalf of the state in court proceedings shall be performed by an employee of the Office who was authorised to do so by the General Director of the Office. The General Director himself or herself is not entitled to act on behalf of the state in court proceedings; this means, inter alia, that he or she must not attend hearings as a person acting on behalf of the state, or lodge any pleadings on behalf of the state. The reason is that the law limits the General Director’s powers in civil court proceedings to the granting of the authorisation stipulating which employee of the Office will act on behalf of the state in a particular dispute or any other legal matter. … Neither the manager of the state’s organisation unit, nor the employees authorised by him or her or the employees authorised to act on behalf of the state by the General Director of the Office for Government Representation in Property Affairs, are representatives (agents) of the state within the meaning of Section 24 et seq. Acts performed by these individuals represent acts of the state and documents addressed to the state are served either on the respective organisation unit (its data box, or the address of its registered office), or on the Office (its data box, or the address of the competent regional department of the Office), not on the individuals themselves; their names and surnames are not mentioned in the written copy of the judgment or resolution (cf. Section 157(1) and Section 169(1)). Costs incurred by these individuals during the proceedings are costs incurred by the party to the proceedings (the state).”
“Unless otherwise stated herein, the arbitrators shall apply the provisions of the [CPC] to proceedings pending before them as appropriate”
“The appellate court first addressed the procedural objections of Diag Human SE. It reached the conclusion that although the proceedings regarding the appointment of an arbiter according to Section 9, paragraph 1 of the AAP were separate proceedings, they were nonetheless closely tided (sic) to the particular arbitration proceedings. Therefore, it is essential for the state to be represented by the same organizational unit as in the arbitration proceedings, meaning the unit whose employees have become familiar with the course and contents of the arbitration proceedings. Based on the constant court interpretation of the provisions of Section 21a of the Rules of Civil Court Procedure regarding the conduct of the state, it was determined during the proceedings that for the Office should appear before the court on the state’s behalf instead of the organizational unit of the state with authority according to Act No. 219/2000, and the court, as soon as this situation becomes apparent, should begin negotiating with the Office, with the hitherto results of the proceedings and the effects of procedural acts carried out so far by the respective organizational remaining preserved. The appellate court therefore continued to negotiate with the Office on the side of the plaintiff. However, the proposal for the appointment of the arbiter by the court was filed procedurally by a competent entity, which is a party to the proceedings (the Czech Republic).”
“Under these provisions my view is that the authorisation vested to the OGRPA can be interpreted as the authority to serve the State in a similar way as Attorneys at Law acting on behalf of their clients based on a Power of attorney serve their clients in court proceedings or in arbitrations. It would be absurd for the court or arbitrator not to accept the request for a review filed by the client if the attorney did not file the request on her/his/its behalf …”