Germany, Bundesgerichtshof (Federal Court of Justice)
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Germany / 08 May 2014 / Germany, Bundesgerichtshof (Federal Court of Justice) / N/A / III ZR 371/12
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 08 May 2014 Parties N/A Case number III ZR 371/12 Applicable NYC Provisions II | II(1) | II(2) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4123&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 12 April 2011 Parties N/A Case number XI ZR 341/08 Applicable NYC Provisions II | VII Source Languages German affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4060&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 January 2011 Case number XI ZR 350 / 08 Applicable NYC Provisions VII | II | II(2) Source DIS Languages English Summary The three Claimants, all German citizens living in Germany, sought damages from a brokerage house in the United States, the Defendant, for losses arising from stock option transactions on the US stock exchange. The Defendant cooperated with various agents worldwide who conducted financial transactions on US stock exchanges via an online platform. Following a telephone advertisement, the Claimants signed standard form contracts with one of the Defendant’s agents for the provision of stock option services. In addition, they also signed the Defendant’s “Option Agreement and Approval Form”, which contained an arbitration clause. The Defendant opened individual investment transaction accounts for each of the Claimants. Subsequently, the Defendant sent its standard Terms and Conditions to Claimants, which contained a different arbitration clause from the one contained in the broker’s standard form contract and which, moreover, foresaw the application of New York substantive law. The Claimants subsequently terminated the brokerage agreements and raised tort claims before the Landgericht (Regional Court) Duesseldorf. The Defendant objected to the jurisdiction of the German court, arguing, inter alia, that the dispute should be referred to arbitration based on the existence of an arbitration agreement between the parties. The Landgericht rejected the Claimants’ claims, following which the Claimant’s appealed to the Oberlandesgericht (Higher Regional Court) Duesseldorf. The Oberlandesgericht held that it had jurisdiction over the dispute and granted the majority of the Claimants’ claims. The Defendant appealed to the Bundesgerichtshof (Federal Supreme Court) on points of law, seeking a reversal of the Oberlandesgericht's decision and the reinstatement of the Landgericht’s decision. The Bundesgerichtshof rejected the Defendant’s appeal and upheld the Oberlandesgericht’s finding on jurisdiction, finding the respective arbitration clauses to be either non-binding or invalid. It held that the arbitration agreement that the Claimants had signed had not become binding on one of the Claimants pursuant to Section 37(h) of the Wertpapierhandelsgesetz (German Securities Trading Act), since that party was not a merchant and hence subjectively not capable to arbitrate pursuant to that legislation. The Bundesgerichtshof held that as regards the other two Claimants, the arbitration agreements were invalid for formal reasons, as they neither fulfilled the requirements of Article II(2) NYC nor those of the less stringent German law, which would apply pursuant to the more-favorable-right provision at Article VII NYC. The Bundesgerichtshof reasoned that the contracts containing the relevant arbitration agreements were consumer contracts under German law and hence, under Section 1031(5) of the German Civil Procedure Code, subject to the more strict form requirements for arbitration agreements involving consumers. It concluded that the arbitration agreements did not meet these requirements since, inter alia, they had not been signed by both parties. The Bundesgerichtshof upheld the Oberlandesgericht’s decision on merits granting damages to the Claimants. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1306&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 16 December 2010 Case number III ZB 100/09 Applicable NYC Provisions V | V(1)(a) Languages English Summary The Claimant sought recognition and enforcement of an award rendered in its favor in France by the Chambre Arbitrale Internationale pour les Fruits et Légumes (CAIFL). While the Defendant alleged the absence of an arbitration agreement during the proceedings, it did not avail itself of the appeal process in accordance with the Parties' contract, nor did it bring an action to set aside the award in the French courts. The Oberlandesgericht München (Higher Regional Court Munich) refused to declare the award enforceable on the grounds that there was no written arbitration agreement. The Claimant appealed that decision. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision of the Oberlandesgericht. It held that the case law of the Bundesgerichtshof pertaining to the preclusion of pleas not raised before the tribunals or courts of the country in which the award was rendered no longer applied after the 1998 reform to German arbitration law. Therefore, even though the Defendant did not take recourse before the appellate body of the CAIFL or the French courts, it was not precluded from arguing that the tribunal lacked competence. The Court found that the Defendant was not in bad faith, and considered that contradictory behavior is abusive only when the other party has special confidence in that behavior or where circumstances make the behavior appear to be contrary to good faith. The mere fact that a party takes recourse in Germany without having sought to set aside the award abroad does not amount to contradictory behavior. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=517&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 30 September 2010 Case number III ZB 69/09 Applicable NYC Provisions VII | V | II | V(1)(a) | II(2) | VII(1) Source BGH Languages English Summary A party sought enforcement of a foreign arbitral award in Germany. The issue that was dealt with throughout the proceedings before the courts was that a provision of German law foresees that the NY Convention alone applies to the recognition and enforcement of foreign arbitral awards (§ 1061 of the German Code of Civil Procedure). Thus, the question arose whether German law could accept the reference made back to German domestic arbitration law by Article VII(1) NYC for the requirement of an "agreement in writing" set out in Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt/Main granted enforcement. Although there was no written arbitration agreement within the meaning of Article II (2) NYC, the Court found that in light of the more-favorable-right provision at Article VII(1) NYC, the requirement of an arbitration agreement signed by both parties could be dispensed with. The Court held that the party seeking enforcement could rely upon an arbitration agreement which complied with a less stringent provision of German law that would ordinarily only apply to domestic arbitration. Pursuant to the German law theory of "kaufmännisches Bestätigungsschreiben", a valid arbitration agreement can be concluded "in accordance with common usage" if a businessman remains silent after having been provided by another businessman with a 'sales confirmation' containing an arbitration clause. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision, holding that the more-favorable-right provision at Article VII(1) NYC permitted the application of a German provision less stringent than Article II NYC. It held that international law supports a broad interpretation of the more-favorable-right rule and an application of recognition-friendly national provisions to foreign arbitral awards. Also with regard to Article V(1)(a) NYC, the Court held that the more-favorable-right provision at Article VII(1) NYC also applies to the effect that there is no need to assess the validity under the law of the country in which the award was rendered when its validity is assessed under the law of the country in which enforcement is sought. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=425&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 08 June 2010 Case number XI ZR 349/08 Applicable NYC Provisions II | II(2) Source BGH Languages English Summary In this complex case, the German Claimants entered into service agreements with a New Jersey broker via the latter's German agent. A multitude of forms were sent by that broker to the German claimants, some of which contained (contradictory) arbitration agreements, and none of which yet had been signed by both Parties. The dispute went through all instances in Germany. The Bundesgerichtshof (Federal Supreme Court) held, inter alia, that arbitration clauses regarding disputes related to broker activities are not binding under German law, unless both parties are businessmen. It further held that pursuant to the German rules of private international law, arbitration clauses contained in contracts concluded between German consumers and foreign brokers are to be assessed under German law and therefore must meet the formal requirements of § 1031(5) of the German Code of Civil Procedure (requirement of, inter alia, a document manually signed by the consumer). The Bundesgerichtshof considered that a certain number of factual assessments still needed to be carried out before a final finding was possible in this case and sent the case back to the Oberlandesgericht (Higher Regional Court) Düsseldorf for reassessment. The Bundesgerichtshof added that it confirmed the view previously expressed by the Oberlandesgericht that under German law, a foreign broker - together with a German broker - will be held to have deliberately inflicted intentional damage on German consumers/investors, thereby offending good morality, when the foreign broker consciously and blatantly grants the German broker full and uncontrolled access to foreign stock exchanges without previously controlling the latter's business plan. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=524&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 02 July 2009 Case number IX ZR 152/06 Applicable NYC Provisions V Source DIS Summary An award was rendered in the Claimant's favour in 2002 and confirmed in 2003 by the Superior Court of California. The California Court adopted the factual findings and the legal considerations underlying the arbitral award, thus incorporating the award in its judgment. The Claimant's application for enforcement was granted by the Landgericht (Regional Court) Berlin in 2005. The Kammergericht (Higher Regional Court Berlin) affirmed the decision in June 2006, reasoning that the confirmation decision adopted the factual findings and legal conclusions of the award and made them their own. The Kammergericht Berlin upheld the doctrine of "double exequatur", whereby an applicant is granted the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that the decision was not a declaration of enforceability but rather an independent order and could be declared enforceable in its own right. The Bundesgerichtshof (Federal Supreme Court) reversed the decision of Kammergericht , abolishing the doctrine of "double exequatur" put forth in two decisions rendered in 1984 (see links below). The Bundesgerichtshof held that the double exequatur of judgments is not permissible under either German procedural law or unified European law of civil procedure since it could allow an applicant to circumvent objections to enforcement based on Article V NYC. According to the Bundesgerichtshof, should a country which is Party to the NYC apply the doctrine of merger, such application should be limited to the territory of that country. affirms : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=302&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 17 April 2008 Case number III ZB 97/06 Applicable NYC Provisions V | V(1)(e) Source BGH Summary A petroleum field licensing contract provided for International Chamber of Commerce arbitration in Copenhagen. The Claimant sought damages for breach of contract and obtained a favorable award. The Kammergericht (Higher Regional Court Berlin) granted enforcement of that award, and the Defendant brought an application for review by the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof set aside the decision of the Kammergericht on the basis that Defendant was precluded from raising grounds to refuse enforcement in Germany, since it had failed to request the setting aside of the award in its country of origin. The Bundesgerichtshof held that although the principle of good faith - and thus the notion of abuse of rights in the case of contradictory behavior ("venire contra factum proprium") - also applied in international arbitration, not every contradictory behavior was to be considered abusive. A party's behavior could only be judged an abuse of rights if the behavior of a party created legitimate expectations for the other party or additional contributory circumstances were in evidence. The Bundesgerichtshof held that the conscious decision not to file a request to set aside an arbitral award in the country of origin could not be understood to be a waiver of all other grounds for refusing enforcement in other countries pursuant to Article V NYC. Thus, the failure to request the setting aside of the arbitral award in the country of origin did not amount to abusive contradictory behavior in the sense of an abuse of rights. reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=286&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 May 2007 Case number III ZB 14/07 Applicable NYC Provisions V | V(1)(e) | V(1)(d) Source DIS Summary The Parties concluded a supply contract in 2000 containing a clause providing for the resolution of disputes at the International Arbitration Court (IAC) at the Belarusian Chamber of Commerce and Industry in Minsk. The Claimant initiated arbitration and obtained favorable award in 2005, which was signed by the President of the tribunal and the arbitrator appointed by the Claimant. The signature of the third arbitrator was replaced by a statement of the President that he was on vacation. The Claimant sought enforcement in Germany, where the Defendant had a subsidiary company. In the meantime, the Supreme Commercial Court in Belarus annulled the award, finding that the tribunal had violated the IAC rules, and that the third arbitrator did not sign the award because he disagreed with the decision, and the President should have requested appointment of a substitute arbitrator. Enforcement was denied by the Oberlandesgericht (Higher Regional Court) Dresden on 31 January 2007 pursuant to Article V(1)(e) NYC, because the award had been set aside in Belarus. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof dismissed the appeal and denied enforcement, finding that the Oberlandesgericht had not violated due process by failing to examine fully the Claimant's arguments. It reasoned that Article V(1)(e) NYC allows the enforcement court to refuse recognition when the award has been set aside by the court in the country of rendition. Furthermore, the Oberlandesgericht ascertained independently that the award had been rightly annulled because it was rendered by a truncated tribunal in violation of the applicable IAC rules. The Bundesgerichtshof further held that recognition should be also be refused under Article V(1)(d) NYC for irregularity of the arbitral procedure. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=284&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 2007 Case number III ZB 35/06 Source DIS Summary An arbitral tribunal at the International Chamber of Commerce (ICC) in Geneva rendered a Partial Award on Jurisdiction deciding both its jurisdiction and the allocation of the costs incurred up to that stage of the proceedings. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) granted enforcement. The Defendant appealed. The Bundesgerichtshof (Federal Supreme Court) upheld the decision of the Oberlandesgericht, finding that a foreign arbitral award containing a decision on jurisdiction as well as a decision on the allocation of the costs of the proceedings incurred to that stage is not an interim decision, but rather a final award which can be declared enforceable. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=283&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 23 February 2006 Case number III ZB 50/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source BGH Languages English Summary The Parties concluded a contract for the delivery of wood that provided for arbitration pursuant to the Arbitration Rules of the Belorussian Chamber of Industry and Commerce in Minsk. The Defendant did not participate in the proceeding since it considered the arbitration clause to be invalid. The Oberlandesgericht (Higher Regional Court) Karlsruhe rejected the application to declare the award enforceable on the ground of violation of public policy, arguing that the award did not comply with a provision of the Belorussian Arbitration Law providing that in the event of a challenge to its jurisdiction, the arbitral tribunal must rule on its competence in a preliminary award. The Claimant thereafter sought to set aside the decision of the Oberlandesgericht Karlsruhe by a complaint on points of law to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that the Oberlandesgericht Karlsruhe was mistaken in ruling that the award violated public policy. Pursuant to Article VII(1) NYC and the (more favourable) provisions of the German-Soviet Treaty on General Issues of Trade and Maritime Transport of 1958, which was held to apply to Germany's relations with Belorussia, grounds for non-enforcement were more limited than under the NYC, since the Treaty presupposes a violation of international public policy. The Bundesgerichtshof held that the tribunal did not violate international public policy since neither the UNCITRAL Model Law nor the German law required an tribunal to always rule by separate and preliminary award. Because the Parties were not prevented from having the award reviewed by the state courts, their fundamental rights had not been infringed. The Bundesgerichtshof held that the declaration of enforceability could not have been denied on that ground. Yet, it could have been denied on the basis of the absence of a valid arbitration agreement. Since the Oberlandesgericht Karlsruhe did not determine this issue, the matter was referred back to it. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=382&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 04 October 2005 Case number VII ZB 09/05 Applicable NYC Provisions III Source DIS Languages English Summary An award issued by an arbitral tribunal constituted under the Rules of the Stockholm Chamber of Commerce ordered the Russian Federation, on the basis of the Germany-USSR Investment Treaty, to pay damages to the Applicant. The Kammergericht (Higher Regional Court of Berlin) declared the award enforceable. The Applicant applied for, and obtained from the Amtsgericht (Local Court) Koeln, a third-party execution order for the attachment and transfer of pecuniary claims of the Russian Federation against a third party for the grant of overflight and other rights concerning air traffic. The Russian Federation and the third-party objected to the order and the Amtsgericht vacated the order. The Applicant appealed to the Oberlandesgericht (Higher Regional Court) Koeln which upheld the decision of the lower court. The Applicant appealed to the Bundesgerichtshof (Federal Supreme Court) on points of law, aiming to have the third-party execution order reinstated. The Bundesgerichtshof dismissed the appeal on points of law, finding that the attachment order was inadmissible. It held that German courts lacked international jurisdiction to attach claims for fees relating to the granting of overflight, transit and landing rights, as such public law claims of a foreign state were not subject to attachment in execution proceedings under German law. The Bundesgericht found that the Russian Federation’s fees for air traffic rights arose directly from, and served, sovereign purposes, namely the administration of air traffic, and that they were thus protected from being attached due to diplomatic immunity, as the Russian Federation had not waived its immunity in this regard. It clarified that whether the assets were of a sovereign nature or not had to be determined under the German lex fori, and that under German law assets were granted immunity from satisfying execution when they served a sovereign purpose at the time of initiation of the enforcement proceedings. The Bundesgerichtshof found that entering into an arbitration agreement could imply a waiver of immunity, but that any such waiver would not generally extend to the enforcement proceedings. It further noted that the reference in the Germany - USSR Investment Protection Agreement to the NYC was merely meant to open up the opportunity for enforcement but did not contain a general waiver of immunity. In this context, the Bundesgerichtshof noted that pursuant to Article III NYC, foreign awards were to be enforced in accordance with domestic procedural rules, which under German law included the commonly acknowledged principles of international law recognizing diplomatic immunity. The Bundesgerichtshof also held that a general waiver of immunity could not be assumed on grounds of public international law and noted that the ICSID Convention even contained an express reservation regarding state immunity from enforcement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1329&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 04 October 2005 Case number VII ZB 8 / 05 Applicable NYC Provisions III Source DIS Languages English Summary The Applicant had an investment dispute with the former USSR. Based on the Investment Protection Agreement signed by the Federal Republic of Germany and the former USSR the Applicant obtained a favorable award in arbitration proceedings conducted under the Rules of the Stockholm Chamber of Commerce and was granted enforcement by the Kammergericht (Higher Regional Court of Berlin). In the execution proceedings, the Amtsgericht Mitte (Berlin Local Court) granted, upon the Applicant’s request, a third party debtor execution order for the attachment and transfer of certain of the Russian Federation’s claims against the Federal Republic of Germany for the refund of VAT, based on a German regulation according to which VAT was refunded to permanent diplomatic missions and their diplomats, non-honorary consular posts and their members. The Russian Federation objected to the order, arguing that the VAT refunds were generally used for the maintenance of the diplomatic mission and consular offices. Finding that the attached claims indeed served sovereign purposes and were thus exempt from attachment, the Amtsgericht vacated its attachment order. The Applicant appealed to the Kammergericht, which upheld the decision of the Amtsgericht. The Applicant then sought reinstatement of the attachment order before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof rejected the application for reinstatement of the attachment order holding that the attachment of the VAT refund claims was inadmissible as they served sovereign purposes and the respondent State had not waived its immunity in relation to such claims. The Bundesgerichtshof found that a waiver of immunity with respect to the execution proceedings could not be inferred from the inclusion of an arbitration agreement in the Investment Protection Agreement and that immunity in the context of the arbitration, on the one hand, and in the context of execution proceedings, on the other, had to be determined separately and based on different criteria. Moreover, it found that the provision of the Investment Protection Agreement which “recognized and enforced” arbitral awards in accordance with the NYC did not imply a waiver of immunity in respect of enforcement proceedings. The Bundesgerichtshof also stated that the NYC did not contain a waiver of sovereign immunity. It concluded that under Article III NYC, foreign awards were to be enforced in compliance with the rules of procedure of the country of enforcement and that the general principles of international law regarding diplomatic protection were part of German procedural law. The Bundesgerichtshof noted that while the NYC, in light of its object and purpose to foster cross-border investments, generally sought to make enforcement possible against assets of the contracting parties, it did not require such enforcement for assets which served a sovereign purpose. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1319&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 2005 Case number III ZB 18/05 Applicable NYC Provisions VII | VII(1) Source BGH Summary The Claimant initiated arbitration in the Netherlands for the payment of works under a sales contract, and obtained an award in its favor. The Defendant had challenged the tribunal's jurisdiction on the grounds that the Parties had entered into an oral agreement and their alleged arbitration agreement was contained in general conditions copied on sales invoices. The Claimant sought recognition and enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Oldenburg denied recognition on the grounds that there was no arbitration agreement in writing pursuant to Articles V(1)(a) and II(2) NYC. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that in matters of recognition and enforcement of foreign arbitral awards, German courts are empowered by Article VII(1) NYC to apply national German law motu propio (without the parties invoking it) if the latter contains more favorable conditions for enforcement. This includes the German conflicts of laws rules, which point to Dutch law as the applicable law to the contract (lex contractus) chosen by the Parties. Pursuant to Dutch case law, a reference in an invoice to standard conditions of contract containing an arbitration clause may validly bind the parties that are in an ongoing business relationship is valid. The Bundesgerichtshof referred the case back to the Oberlandesgericht, which had not addressed this issue. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=278&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 September 2003 Case number III ZB 68/02 Applicable NYC Provisions VII | IV | VII(1) | IV(1) Source DIS Summary The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement of an award rendered in Sweden. The Claimants had submitted a certified copy of the agreement containing the arbitration clause and the arbitral award, as well as certified translations of the arbitration clause and the arbitral award into German. The Defendant filed an appeal on a points of law before the Bundesgerichtshof (Federal Supreme Court) alleging that the Oberlandesgericht Hamburg erred in relying directly on the German provisions concerning the formal requirements for enforcement, rather than those requirements under the NYC. The Bundesgerichtshof held that Article VII(1) NYC allows states to apply domestic provisions regarding the enforcement of foreign awards to the extent that they are more favorable than the provisions of the NYC. This was the case here since there were no specific requirements for the certification of the translations of the arbitration agreement or the arbitral award under German law. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §13
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=269&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 22 February 2001 Case number III ZB 71/99 Applicable NYC Provisions V | IV | V(1)(e) | IV(1)(b) | IV(1)(a) Source DIS Summary The Parties concluded a contract containing a clause providing for arbitration before the Maritime Arbitration Commission at the Chamber of Commerce and Industry in Moscow. The Claimant obtained a favorable award. The Defendant sought annulment before the Moscow District Court, which set aside the award. This decision was first affirmed by the Moscow Court of Appeal, and subsequently annulled by the Supreme Court of the Russian Federation and referred back to the Moscow District Court, which finally denied the request for setting aside. In the meantime, the Claimant sought enforcement in Germany but – prior to the annulment of the initial setting aside decision – the Oberlandesgericht (Higher Regional Court) Rostock denied enforcement. The Bundesgerichtshof (Federal Supreme Court) reversed the decision of the Oberlandesgericht Rostock and granted enforcement. The Bundesgerichtshof relied on the Russian decisions ultimately denying Defendant’s request to set aside the award, which had been rendered after the Court of Appeal's decision. It held that the Claimant's submission of a duly certified copy of the arbitral award that reproduced a non-authenticated original award could be deemed to comply with the conditions of Article IV(1)(a) NYC, since the existence and authenticity of the award was undisputed. It further held that the requirement under Article IV(1)(b) NYC can be departed from when the party resisting enforcement does not dispute the alleged contents of the arbitration agreement, as was the case here. Finally, it considered that the grounds for refusal under Article V(1)(e) NYC no longer existed because the arbitral award had become binding on the Parties in the meantime and had not been set aside. affirmed by : affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=256&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 01 February 2001 Case number III ZR 332/99 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties negotiated a charterparty referring to the GENCON General Conditions, which contained an arbitration clause. The Claimant obtained a favourable award from a sole arbitrator and sought enforcement at the Landgericht (Regional Court) Ravensburg, which denied enforcement on the grounds that the sole arbitrator lacked impartiality. The judgment was affirmed by the Oberlandesgericht (Higher Regional Court) Stuttgart, which found that the sole arbitrator had acted on behalf of the Claimant prior to the arbitration, that this could give at least the impression of impartiality, which violated fundamental principles of public policy. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht decision and granted enforcement. It held that the award at issue was a foreign award governed by the NYC. The Court affirmed the lower courts' finding that the Defendant had been duly informed of the arbitration. It considered, however, that the mere fact that a party-appointed arbitrator decided the dispute as a sole arbitrator did not amount to a violation of (international) public policy within the meaning of Article V(2)(b) NYC. According to the Bundesgerichtshof, there must be actual and proven bias rather than an appearance of bias. Furthermore, an objection to enforcement based on bias must first be raised in the country where the award is rendered, unless the Party raising that objection is prevented from doing so. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=255&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 17 August 2000 Case number III ZB 43/99 Applicable NYC Provisions IV | IV(1)(a) Source BGH Summary A German investor commenced arbitration proceedings against the Republic of Poland based on Article 11 of the Germany-Poland Bilateral Investment Treaty (BIT). An award was rendered in Zurich directing the Republic of Poland to pay DM 2.3 million to the Claimant. The Claimant obtained enforcement in Germany from the Oberlandesgericht (Higher Regional Court) Frankfurt. The Republic of Poland appealed to the Bundesgerichtshof (Federal Supreme Court), alleging that the Claimant had failed to meet the requirements of Article IV(1)(a) NYC. The Bundesgerichtshof affirmed the decision of the Oberlandesgericht Frankfurt granting enforcement. According to the Bundesgerichtshof, Article IV NYC is a provision that merely concerns evidence. In this case, Article IV only required that the Claimant supply the award, because the applicable arbitration agreement could be found in the BIT. For a foreign arbitral award to be recognized and declared enforceable in Germany, the deeds listed in Article IV NYC must be provided. In this case, the Claimant was not required to prove the authenticity of the award because the Republic of Poland did not dispute it. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=253&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 1993 Parties N/A Case number XI ZR 52/92 Applicable NYC Provisions II | II(2) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4074&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 03 December 1992 Case number III ZR 30/91 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for delivery of sheep furs on the standard form “International Hide & Skin Contract No. 2” which contained an arbitration clause. The Buyer raised certain claims under the contract before the Landgericht (Regional Court) Frankfurt which were dismissed on the grounds that the parties had entered into an arbitration agreement. The Buyer then appealed to the Oberlandesgericht (Higher Regional Court) Frankfurt which reversed the Landgericht’s decision and remanded the case. The Oberlandesgericht held that the arbitration agreement between the parties was not valid since only one of the parties had given its explicit consent. The Seller appealed the decision. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht’s decision on the ground that it had failed to take into account the Seller’s objection that, in the international trade of furs, the arbitration clause contained in the “International Hide & Skin Contract No. 2” was customarily and implicitly agreed between contracting parties on the basis of international trade usages (“Handelsbrauch”). According to the Bundesgerichtshof, an arbitration agreement can be concluded on grounds of international trade usages as long as the relevant contract is typical of the industry and the parties are regularly active in the relevant business field. It concluded that Article II NYC does not prevent the conclusion of an arbitration agreement based on international trade usages to the extent that the law at the seat of the arbitration does not require an arbitration agreement to be concluded in writing. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=919&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 February 1991 Case number XI ZR 349/89 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The Applicant obtained a favorable arbitral award in the Netherlands, granting its payment claims against three different parties (“Respondents”) in relation to commodity futures for slaughter pigs. The Applicant then sought enforcement of the award in Germany under Section 1044 of the German Civil Procedure Code. The Respondents opposed the action, alleging that German exchange law did not permit the enforcement of the obligations at issue and that the arbitral tribunal had not been impartial. The Landgericht (Regional Court) Osnabrück denied enforcement and the Applicant unsuccessfully appealed to the Oberlandesgericht (Higher Regional Court) Oldenburg. The Applicant appealed the decision to the Bundesgerichtshof (Federal Supreme Court), which admitted the appeal with respect to the third Respondent. The Bundesgerichtshof reversed the Oberlandesgericht’s judgment insofar as it had rejected the Applicant’s appeal, modified the Landgericht’s judgment, and declared the arbitral award enforceable with respect to the third Respondent. The Bundesgerichtshof found that enforcement was governed by Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code. It stated that under Article 17 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands on the Reciprocal Recognition and Enforcement of Court Decisions and Other Enforceable Titles in Civil and Commercial Matters, dated 30 August 1962, the NYC was applicable. The Bundesgerichtshof concluded that under Article VII(1) NYC, a party could request enforcement pursuant to the domestic law of the country where enforcement was sought. The Applicant had made use of this so that Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code was applicable. It concluded that there were no grounds for refusing enforcement under Section 1044 of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1334&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 April 1990 Case number III ZR 56/89 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery but refused to take delivery of the rest of the merchandise once delivery became possible. The Seller claimed compensation. The award, affirmed in relevant parts by an appellate award rendered by the GAFTA Board of Appeal, denied the claim and granted the Buyer's counterclaim for damages for the Seller's non-performance. The Seller's action to set aside the award before the High Court in London failed. The Buyer's request for leave to enforce was granted by the Landgericht (Regional Court) Hamburg. This decision was confirmed by the Hanseatisches Oberlandesgericht (Higher Regional Court of Hamburg). The Bundesgerichtshof (Federal Supreme Court) affirmed the decision of the Oberlandesgericht, rejecting the Seller's objection of violation of due process under Article V(1)(b) NYC. It held that a party is barred from raising objections that it should have raised before the "juge d'appui" only where such objections relate to irregularities in the arbitral procedure which violate the law of the State where arbitration takes place, and the Seller's objection did not fail on that ground. Rather, the Court found that the Seller's objection failed because it had the right to be heard before the GAFTA Board of Appeal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=229&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 1990 Case number III ZR 269/88 Applicable NYC Provisions I | V | I(1) | V(1)(b) | V(2)(b) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for the sale of barley. A dispute arose and the Buyer initiated arbitration proceedings with the Grain and Feed Trade Association (GAFTA), which issued two awards ordering the Seller to pay damages to the Buyer. The Seller sought to have the awards annulled by the High Court of Justice in London but was unsuccessful. The Buyer sought enforcement of the award before the Landgericht (Regional Court) Hamburg. The Seller objected to the enforcement, arguing that the arbitral proceedings had been conducted deficiently since a third person had been involved as consultant in the oral hearing and the writing of the award. In addition, the Seller alleged that false testimony and insufficient factual statements by the Buyer had drawn an incorrect picture of the economic situation and that the arbitral tribunal had violated the Seller’s right to be heard. The Landgericht granted the enforcement of the first award in its entirety and part of the second award. The Seller unsuccessfully appealed the decision of the Landgericht to the Oberlandesgericht (Higher Regional Court) Hamburg. The Seller then appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof confirmed the decision of the lower courts, stating that enforcement was subject to the NYC and Section 1044 of the German Civil Procedure Code, based on which it saw no impediments to granting enforcement. The Bundesgerichtshof stated that it did not need to decide whether the application should be assessed in accordance with Section 1044 of the German Civil Procedure Code or the NYC, since either would lead to enforcement being granted. The Bundesgerichtshof stated that both awards fulfilled the requirements of Section 1044(1) sentence 1 of the German Civil Procedure Code and Article I(1) NYC, since, as the Oberlandesgericht had stated, the arbitral awards had become binding upon the parties as they could no longer be challenged before an arbitral tribunal or state court. The Bundesgerichtshof held that recognition of the arbitral awards would not lead to a result that was in obvious contradiction with fundamental principles of German law (Section 1044(2) German Civil Procedure Code and Article V(2)(a) [sic] NYC). In this context, the Bundesgerichtshof found that the involvement of a legal consultant in the proceedings, by the tribunal, did not constitute a public policy violation since such a violation could not simply be assumed on the grounds of a deviation of a foreign arbitral procedure from mandatory domestic procedural law. It reasoned that a divergence was only relevant when it violated international public policy, which was a less restrictive standard for the recognition of foreign arbitral awards as compared to the regime for the recognition of domestic arbitral awards. According to the Bundesgerichtshof, the enforcement of a foreign arbitral award would only be refused if the arbitral proceedings had a severe defect that touched upon the fundamental basis of public and economic life, which was not the case here. With respect to the Seller’s contention that the arbitral tribunal had not appreciated that the Buyer did not have the necessary funds to secure the purchase price claim by way of a letter of credit, the Bundesgerichtshof held that this argument had already been raised before the arbitral tribunal and could therefore not be brought at the enforcement stage. It based this conclusion on the fact that the existence of grounds for revision under Section 580 of the German Civil Procedure Code, which would generally imply violations of international public policy, could no longer be raised in proceedings for recognition and enforcement of an arbitral award if the underlying facts had already been raised in the arbitral proceedings. The Bundesgerichtshof also rejected the alleged violation of the Seller’s right to be heard under Article 1044(2) No. 4 of the German Civil Procedure Code and Article V(1)(b) NYC. It held that, even if the tribunal had not addressed all of the Seller’s arguments, this did not violate the Seller’s right to be heard since an arbitral tribunal does not have to discuss its position vis-à-vis all of the parties’ arguments, rather, it is sufficient that the arbitral tribunal discusses the arguments that underlie its reasoning in the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1335&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 14 April 1988 Case number III ZR 12/87 Applicable NYC Provisions V | I | V(2)(b) | V(1)(e) | V(1)(d) | V(1)(b) | I(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The prevailing party in an International Chamber of Commerce (ICC) arbitration seated in Belgium sought enforcement of the award in Germany. The Landgericht (Regional Court) Stuttgart declared the award enforceable, but its decision was reversed by the Oberlandesgericht (Higher Regional Court) Stuttgart on appeal. The decision of the Oberlandesgericht was appealed before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof reversed the Oberlandesgericht’s decision and reinstated the decision of the Landgericht, which had declared the award enforceable. It found that the NYC was applicable since the award had been rendered within the territory of another contracting state as per Article I(1) NYC. The Bundesgerichtshof held that the formal prerequisites set forth by Article IV NYC had been met and there were no grounds to refuse enforcement of the award under Article V NYC. First, it held that the award had become binding within the meaning of Article V(1)(e) NYC since it was not subject to appeal before a higher arbitral tribunal or a state court . Second, although the tribunal had exceeded the time limit for rendering its award under the ICC Rules, according to the Bundesgerichtshof, this would not constitute grounds for non-enforcement under Article V(1)(d) NYC. In this respect, it noted that under the ICC Rules an arbitral tribunal does not become functus officio unless it is substituted by a different tribunal, even if it fails to render its award within the prescribed time limit; thus, the extension of the time limit for rendering the award had nothing to do with the “composition of the arbitral authority.” Third, it ruled that not giving a party the opportunity to comment on the extension of the time limit for the issuance of the award did not constitute a ground for refusing enforcement under Article V(1)(b) NYC, recalling that this provision merely required that the parties be informed of the constitution of the arbitral tribunal and the existence of arbitral proceedings. The Bundesgerichtshof also dismissed the argument that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) NYC, since the unsuccessful party had failed to make use of the possibility to comment on the extension of the time limit, thus the ICC Court’s failure to explicitly ask for the parties’ comments regarding the extension of the time limit for rendering of the arbitral award did not constitute a violation of German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=921&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 June 1987 Parties Case number II ZR 124/86 Applicable NYC Provisions V | II | V(2)(b) | II(1) Source BGH Summary An investment contract between a German individual and a New York corporation, governed by New York law and containing an arbitration clause, contravened certain mandatory provisions of German exchange laws. In court proceedings in Germany, the New York corporation invoked the arbitration clause. The Bundesgerichtshof (Federal Supreme Court) held that the case was non-arbitrable under German law. The combination of arbitration proceedings abroad and applicable law other than German law would leave the German mandatory exchange laws without effect, with regard to both the protection against claims filed against the persons protected by these laws and the possibility for the protected persons to obtain reimbursement of any sum paid. In the Court's opinion, Article V(2)(b) NYC would have been applicable to the facts of the case since the contract contravened German mandatory rules that are part of German "ordre public". If the arbitration agreement were to be recognised and its validity only verified at the stage of the recognition proceedings, the German individual would be referred to arbitration before an American arbitral tribunal that would not apply the German mandatory rules, with the result that the German individual would be incapable of recovering the sums unduly paid to the New York corporation. For these reasons, the Court denied recognition of the arbitration agreement for the "subject matter" not being "capable of settlement by arbitration" pursuant to Article II(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=222&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 May 1986 Case number BGH III ZR 192/84 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties entered into a charterparty containing a clause providing for arbitration in London. Under the clause, each Party was to appoint one arbitrator. In the event that the arbitrators failed to reach an agreement on the decision, they would have to select an umpire to decide the dispute. The Claimant submitted a claim to arbitration and advised the Defendant that it had nominated an arbitrator, requesting that the Defendant appoint an arbitrator in 7 days or that otherwise its arbitrator would act as a sole arbitrator. The Defendant did not nominate an arbitrator and the sole arbitrator rendered an award in favor of the Claimant. Recognition was denied by the Landgericht (Lower Regional Court) Hamburg. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) reversed the decision and granted enforcement. The Defendant appealed. The Bundesgerichtshof (Federal Supreme Court) upheld the decision of the Hanseatisches Oberlandesgericht and granted enforcement. It concluded that the duty of impartial administration of justice is part of German public policy within the meaning of Article V(2)(b) NYC. "Ordre public international" is only considered infringed if the foreign tribunal has rendered an award on the basis of a proceeding deviating from fundamental principles of German procedural law to such an extent that the award cannot be considered rendered in an orderly procedure in accordance with the rule of law. In the interest of international trade, narrow limits must be drawn for the concept of German public policy in the context of recognition and enforcement. The recognition of an arbitral award can generally only be denied in those cases where the violation of the duty of impartial administration of justice had a real impact on the arbitral proceedings. The Court reasoned that the Defendant would have had to show that the arbitrator was unfit to act because he was partial towards one party, and that it had not met this burden. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=220&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 10 May 1984 Case number III ZR 206/82 Applicable NYC Provisions VII | VII(1) Source BGH Summary This is one of two decisions handed down by the Bundesgerichtshof (Federal Supreme Court) in 1984 by which it accepted the American doctrine of merger in Germany (for the other decision, see link below). The Petitioners obtained a favorable award under the American Arbitration Association Rules. The New York Supreme Court confirmed the judgment and declared it enforceable, and dismissed the Respondent's recourse against the judgment. The German Court of First Instance and Oberlandesgericht (Higher Regional Court) Karlsurhe declared the award enforceable. The Bundesgerichtshof granted the Petitioners the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that a party who has obtained a leave for enforcement in the country of origin of the arbitral award, has for the recognition and enforcement a choice between the arbitral award and the judgment declaring the award enforceable, even if the award had merged into the judgment (the doctrine of merger in Anglo-American law). The Court reasoned that the effect of a such decision of a foreign court could not exclude the enforcement of the award under the relevant provision of the German Civil Procedure Code. German law was applicable, reasoned the Court, in virtue of the more-favorable-right provision at Article VII(1) NYC. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=218&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 27 March 1984 Case number IX ZR 24/83 Source BGH Summary A U.S. Exporter obtained a favorable award under the American Arbitration Association Rules and applied to the New York State Supreme Court for confirmation. A German Importer did not raise objections and the New York State Supreme Court declared the award enforceable. The U.S. Exporter applied for enforcement in Germany. The Bundesgerichtshof (Federal Supreme Court) affirmed the decisions of the Landgericht (Court of First Instance) Frankfurt and the Oberlandesgericht (Regional Court) Frankfurt, recognizing the American common law merger doctrine and granting enforcement of the New York State Supreme Court judgement. This was one of two decisions handed down by the Bundesgerichtshof in 1984 by which it accepts the doctrine of merger in Germany (for the second decision, see link below). reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=217&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 08 October 1981 Case number III ZR 42/80 Source Original decision obtained from the registry of the Bundesgerichtshof Summary An Italian arbitral tribunal rendered a “lodo di arbitrato irrituale” ordering a German party to pay various sums of money to multiple Italian parties. The Italian parties sought enforcement of the “lodo di arbitrato irrituale” in Germany. The Landgericht (Regional Court) Hamburg denied enforcement, finding that the decision was not an arbitral award within the meaning of the NYC. The Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court Hamburg) held that the decision could be recognized but not enforced in Germany. The Italian parties appealed. The Bundesgerichtshof (Federal Supreme Court) first clarified that, having entered into force for both Germany and Italy, the NYC was applicable to the case at hand irrespective of the fact that the arbitration agreement had been concluded before the NYC entered into force for Italy. It then held that the “lodo irrituale” could not be recognized or enforced under the NYC since it was not an arbitral award within the meaning of the NYC. The Bundesgerichtshof justified this finding based on the wording, the ratio legis and the drafting history of the NYC. It stated that the word “arbitration” in the NYC referred to proceedings in which the arbitrators were asked to decide a legal dispute in lieu of a state court. Thus, it was clear that the NYC could not be applied to proceedings that were only contractually binding on the parties, but did not have the binding force of a court judgment, as was the case with the Italian “lodo irrituale”. Moreover, the Bundesgerichtshof held that the application of the NYC to the “lodo irrituale” would contradict the purpose of the NYC, namely to treat foreign arbitral awards equally in the Contracting States. The Bundesgerichtshof reasoned that by granting enforcement of the “lodo irrituale”, which only had contractual force in Italy, it would become a binding decision when recognized under the NYC in Germany or in any other Contracting State. According to the Bundesgerichtshof, it was not the purpose of the NYC to give a domestic award more far-reaching effects abroad than in its home jurisdiction. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=214&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 09 March 1978 Case number III ZR 78/76 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary A Dutch seller of potatoes (the Seller) initiated arbitration proceedings against two German producers of French fries (the Buyers) based on an alleged sales agreement between the parties that provided for arbitration under the Rules and Usages of Intra-European Trade in Potatoes (RUCIP) in Hamburg. The arbitral tribunal dismissed the Seller’s claims based on the absence of a valid arbitration agreement. The Seller then appealed to an appellate arbitral tribunal as per the RUCIP, seated in Brussels, which modified the previous award and rendered an award in favor of the Seller. The arbitration award was declared enforceable by way of an order (“ordonnance”) by the President of the First Instance Court in Brussels. Upon application by the Seller, the Landgericht (Regional Court) Duisburg granted enforcement of the award. The Buyers lodged an objection to the declaration of enforceability on the grounds that no contract or arbitration clause existed between the parties. The Landgericht rejected the objection and confirmed its declaration of enforceability by way of a court judgment. The Buyers appealed – unsuccessfully – to the Oberlandesgericht (Higher Regional Court) Düsseldorf, and subsequently, on points of law only, to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof upheld the decision of the lower courts stating that enforcement was governed by the German-Belgian Treaty concerning the Reciprocal Recognition and Enforcement of Judicial Decisions, Arbitral Awards and Official Documents in Civil and Commercial Matters of June 30, 1958, (“the Treaty”), which was applicable to arbitral awards rendered within the territory of the contracting parties to the Treaty. As the appellate arbitral tribunal had been seated in Brussels, the Treaty was applicable to the award. However, the Bundesgerichtshof went on to say that, under Article 16 of the Treaty, the NYC, amongst others, might also be applicable, but found that it did not need to decide the interrelationship of such other treaties and the German-Belgium Treaty since the latter was more favorable for a party that sought enforcement in Germany of an arbitral award rendered and granted enforcement in Belgium. It held that Article VII NYC permitted the enforcing court to apply the more favorable rule in the bilateral treaty. The Bundesgerichtshof concluded that under the German-Belgium Treaty there existed no grounds to refuse enforcement of the arbitral award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1336&opac_view=6 Attachment (1)
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