LIECHTENSTEIN Trends and Developments Contributed by: Michael Nueber and Philipp Konzett, Nueber Konzett
This wider international enforceability therefore remains one of the key reasons for choosing arbitra - tion in disputes connected with Liechtenstein. How - ever, an arbitral award is not automatically enforceable everywhere. A Liechtenstein award can generally be recognised and enforced in other Convention states, but the courts there will apply their own procedural rules and may refuse enforcement in certain excep - tional cases, for example where the dispute could not legally be decided by arbitration or where enforcement would conflict with fundamental principles of local law. A further development concerns the effect of recent EU case law on the recognition of arbitral awards. Fol - lowing the CJEU’s decision in RFC Seraing v FIFA , UEFA and URBSFA , awards rendered outside the EU or EEA may be subject to closer review where no court capable of ensuring compliance with EU public policy has exercised effective judicial control. Liechtenstein may offer a particular advantage in this respect: as an EEA member state, its courts and arbitral tribunals must take account of EEA fundamental freedoms and the corresponding public policy requirements, while EEA-law questions may be referred to the EFTA Court through the supporting state courts. This framework may strengthen the finality and recognition of Liech - tenstein-seated awards, particularly where they are intended to have effect or be enforced within the EU or EEA. When it comes to the enforcement of foreign arbitral awards, Liechtenstein applies the New York Conven - tion to arbitral awards made in other countries that are also parties to the Convention. It has not limited the Convention to disputes that are classified as com - mercial under Liechtenstein law. This advantage is especially relevant where the par - ties, the assets and the underlying structure are situ - ated in several jurisdictions. A Liechtenstein founda - tion may hold shares in foreign operating companies, beneficiaries may reside in different countries, trus - tees or protectors may be based abroad, and bank - able assets may be held through several institutions. In such cases, the ability to enforce an award in the jurisdiction in which the relevant assets are located may be more important than the location in which the substantive dispute originated.
Enforcement strategy should therefore be considered when the arbitration clause is drafted. The choice of seat, the expected location of assets, the formal valid - ity of the arbitration agreement and the scope of the clause may all affect the eventual enforceability of the award. Similarly, parties should be aware when choos - ing Liechtenstein state courts as the agreed venue that their decisions may not always be recognised and enforceable abroad. Private wealth arbitration moves beyond the standard clause The most distinctive area of Liechtenstein arbitration continues to be private wealth and private client dis - putes. Arbitration clauses are increasingly considered for foundation statutes, trust deeds, articles of asso - ciation and related governance documents. Disputes that may be referred to arbitration include information and distribution rights, the interpretation of foundation or trust documents, claims concerning the exercise of trustee or foundation council powers, asset man - agement and investment decisions, and liability for alleged breaches of duty. Certain disputes concern - ing the validity of appointments or of resolutions may also be arbitrable, although parties should analyse the arbitrability carefully. Matters reserved to the Liech - tenstein courts in their supervisory capacity – includ - ing the judicial removal of foundation bodies, special audits, changes to a foundation’s purpose or govern - ing documents, and the dissolution of a foundation – generally cannot be decided by an arbitral tribunal. Conflicts between family branches are arbitrable only insofar as they give rise to concrete legal claims cov - ered by a valid arbitration clause. Liechtenstein law expressly approves of arbitration clauses contained in articles of association, foun - dation statutes, trust deeds and comparable instru - ments. Under § 634 (2) ZPO, such clauses are binding not only upon the signatory but also upon beneficiar - ies of foundations and trusts. This binding effect exists notwithstanding the fact that beneficiaries are usually consumers. In other settings, statutory protections for natural per - sons nevertheless remain relevant. Still, in contrast to similar jurisdictions such as Austria, Liechtenstein allows for arbitration agreements between entrepre -
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