LIECHTENSTEIN Law and Practice Contributed by: Moritz Blasy, Nicolai Binkert, Simon Ott and Kathrin Binder, Schurti Partners Attorneys at Law Ltd
arbitrariness. Consequently, the chances of success with a constitutional complaint are very limited. 11.2 Excluding/Expanding the Scope of Appeal As a matter of the Liechtenstein Arbitration Law, the parties cannot agree to exclude or expand the scope of appeal or challenge to the ordinary courts. On the other hand, it is within the autonomy of the parties to agree to a further arbitral tribunal as a second instance. 11.3 Standard of Judicial Review The Liechtenstein Court of Appeal does not review the merits of the case. Liechtenstein signed and ratified the New York Con - vention in 2011, but has submitted a reservation on reciprocity. Contrary to some other signatories to the Convention, Liechtenstein has not submitted a reser - vation on commercial trade. 12.2 Enforcement Procedure The enforcement of an arbitral award does not require a separate recognition procedure in Liechtenstein since arbitral awards are deemed to be equal to judg - ments of the ordinary (Liechtenstein) courts. Arbitral awards will be enforced in the same way as judgments of the ordinary courts – ie, by means of an application for enforcement to the Liechtenstein District Court. The enforcement of a foreign arbitral award in Liech - tenstein is governed by the provisions of the New York Convention. Accordingly, to enforce a foreign arbitral award, the enforcing party must enclose with the application for enforcement the certified original or a duly certified copy of the arbitral award and a certified translation of the arbitral award. Further, the Liechtenstein District Court must confirm the enforce - ability of the arbitral award (what may be applied for in the application for enforcement). The main difference between enforcement on the basis of a domestic arbitral award and enforcement 12. Enforcement of an Award 12.1 New York Convention
on the basis of a foreign arbitral award is that, in the latter case, the Enforcement Act provides for a spe - cial opposition procedure ( Widerspruchsverfahren ) in which the debtor can raise objections that are specifi - cally (and only) available against the enforcement of foreign arbitral awards – eg, that the conditions set forth in the New York Convention are not fulfilled, or that the foreign arbitral award violates Liechtenstein public policy ( ordre public ). The opposition is to be raised with the Liechtenstein District Court and is to be dealt with in an oral hearing. An opposition can be raised in parallel to an appeal against the enforcement order with the Liechtenstein Court of Appeal. If an award has been set aside by the courts in the seat of arbitration in a binding decision, the respective award cannot be enforced in Liechtenstein under the New York Convention. It is up to the party against which enforcement is sought to argue and prove that the award has been set aside in a binding decision. The mere challenge of the award does not constitute an obstacle for recognition. However, the enforcement may be suspended upon request if an action for the award to be set aside was filed. According to Liechtenstein and Austrian case law, a state or state entity may successfully raise the defence of sovereign immunity in all areas of sovereign activity. Actions performed by a state iure gestionis (ie, like a private individual) are not covered by this immu - nity. The decision as to whether a state activity is to be qualified as sovereign or private shall be made According to Liechtenstein case law, the New York Convention must be interpreted in a manner support - ing the arbitration and enforcement thereof. The public policy grounds must reach a high threshold for the enforcement of an arbitral award to be impeded. According to Liechtenstein case law, not every devia - tion from Liechtenstein law constitutes a violation of public policy – a severe violation of the fundamental values of the Liechtenstein legal order as a whole is required. Therefore, the public policy exemption is applied extremely restrictively. according to Liechtenstein law. 12.3 Approach of the Courts
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