Germany, Kammergericht
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Germany / 20 January 2011 / Germany, Kammergericht / 20 Sch 09/09
Country Germany Court Germany, Kammergericht Date 20 January 2011 Case number 20 Sch 09/09 Applicable NYC Provisions II | VII | II(2) | VII(1) Source Original decision obtained from the registry of the Kammergericht. Languages English Summary A Czech Seller of sugar sought enforcement in Germany before the Kammergericht (Higher Regional Court Berlin) of an arbitration award rendered against a German Buyer, following an arbitration in London under the arbitration rules of the Refined Sugar Association (RSA). The Buyer opposed enforcement and raised certain counterclaims in the enforcement proceedings. The Seller argued that the counterclaims were inadmissible in the proceedings because the three contracts which formed the basis for the Buyer’s counterclaims all contained arbitration clauses. The Buyer, in contrast, argued that the arbitration clauses in two of the contracts were invalid since they had only been signed by the Buyer but not by the Seller. The Kammergericht granted enforcement without hearing the Buyer’s counterclaims, finding that the arbitration clauses in all of the three contracts were valid. It considered that the arbitration clause contained in the contract signed by both parties was valid since it clearly met the formal requirements under Article II(2) NYC. The Kammergericht held that the validity of the arbitration clauses in the other two contracts resulted from the application by analogy of Section 1031(2) of the German Code of Civil Procedure, pursuant to which an arbitration agreement was valid if it was contained in a document transmitted by one party to the other party, provided that the content of the document could customarily be considered as contractually agreed, if the receiving party did not object to it in a timely manner (“kaufmaennisches Bestaetigungsschreiben”). The Kammergericht noted that under the more-favorable-right provision at Article VII NYC, the less stringent requirements under German law were applicable instead of those in the NYC. It concluded that since all three arbitration clauses were valid, the Buyer’s counterclaims were inadmissible based on the application by analogy of Section 1032(1) of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1304&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 11 June 2009 Case number 20 Sch 04/07 Applicable NYC Provisions V Source DIS Summary In 1981, the Parties concluded an investment contract for the construction of an observatory, which included an agreement for the resolution of disputes by three arbitrators. A war broke out in State X and the observatory was destroyed. At the end of the war, Construction Company Z decided not to resume work. The Parties thereafter signed an Acknowledgement of Debt. State X did not meet its obligations and Company Z initiated arbitration, obtaining favorable award in 2007. Company Z then sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) granted enforcement. It reasoned that there were no public policy or arbitrability grounds to deny enforcement which could be analysed at its own initiative. This would only be the case if the subject matter of the dispute were not capable of settlement by arbitration under German law or the recognition or enforcement of the arbitral award would be contrary to public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=300&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 17 April 2008 Case number 20 Sch 02/08 Applicable NYC Provisions V | V(2)(b) | V(1)(b) Source DIS Summary The Parties concluded a supply contact in 2004 containing an clause referring disputes to arbitration at the International Commercial Arbitration Court (ICAC) in the Ukraine. The Claimant commenced arbitral proceedings. The ICAC Secretariat subsequently sent the Statement of Claim, the ICAC Rules and a list of possible arbitrators to the Defendant by registered letter, which was not collected and returned to sender. A subsequent registered letter containing an invitation for the Defendant to attend the hearing was also returned to sender. The tribunal rendered an award in the Claimant's favor and sent it to the Defendant by registered letter, which was not collected. The Claimant's lawyer then sent the award to the Defendant, and sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) granted enforcement, finding that the Defendant was precluded from relying on grounds for non-enforcement since it had not raised them in annulment proceedings in the Ukraine within the three-month time limit set by Ukrainian law. The preclusion (Präklusion) provision in respect of domestic awards in Germany applied to the enforcement of foreign awards, even if there is no equivalent provision in the NYC. The Court considered that there had been no violation of due process justifying non-recognition under Article V(1)(b) NYC, as "assumptions of communication" [Zustellungsfiktionen] suffice for proper summons. The Court further found that there had been no violation of procedural due process within the meaning of Article V(2)(b) NYC, because under Ukrainian arbitration law, a registered letter is deemed to have been duly delivered to the defendant in an arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=287&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 10 August 2006 Case number 20 Sch 07/04 Applicable NYC Provisions VII | V | IV | III | V(1)(e) | V(2)(a) | VII(1) | V(1)(a) | IV(2) | IV(1)(b) Source Original decision obtained from the registry of the Kammergericht
Languages English Summary In relation to a joint venture contract for the exploration of Lithuanian oil fields, a tribunal constituted under the Rules of the International Chamber of Commerce (“ICC”), seated in Copenhagen, ordered the Respondents, a foreign state and a company incorporated under the laws of that state, to pay damages to the Applicant as joint and several debtors. The foreign state issued a resolution stating that it did not consider it appropriate to seek annulment of the award at the seat of the arbitration. The Applicant applied for enforcement of the award in Germany. The foreign state opposed enforcement before the Kammergericht (Higher Regional Court Berlin) arguing that (i) it was not a party to the arbitration agreement, (ii) the arbitration agreement did not encompass disputes regarding the oil fields, (iii) this was a dispute about natural resources which were in the public law domain and thus not susceptible to arbitration, and (iv) that it had not been fully granted the right to be heard. The foreign state further argued that its resolution did not constitute a waiver of the right to seek an annulment of the award and that the time limit for seeking annulment had not yet passed. In addition, it sought that the arbitral tribunal’s factual findings be fully reassessed by the Kammergericht. The Respondent company opposed enforcement of the award, stating that (i) the Applicant had not fulfilled the formal requirements for enforcement as it had not submitted a notarized translation of the arbitration agreement, (ii) that the application for enforcement would constitute an abuse of law as the Applicant was not willing to comply with the award issued for the counter claims raised by the Respondent company, and (iii) that the recognition and enforcement of the award would be contrary to German public policy. It further argued that it did not have any attachable assets in Germany due to which the Kammergericht did not have jurisdiction over it. The Kammergericht declared the award enforceable against the Respondent state but not the company. It found that the application met the formal requirements for a declaration of enforceability and that pursuant to Section 1064 paras 1 and 3 of the German Civil Procedure Code the Applicant need only provide a certified copy of the arbitral award. It held that while Articles IV(1)(b) and IV(2) NYC required submission of the original arbitration agreement or a certified copy, and a certified translation of the award, under the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law would be applicable. The Kammergericht noted that this interpretation was also in line with Article III NYC according to which the recognition of foreign awards could not be subject to substantially more onerous conditions than the recognition of domestic awards. On the merits, the Kammergericht concluded that the Respondent state was precluded from raising objections since it had previously, by way of its resolution, abstained from seeking annulment of the award at the arbitral seat, even though the award could only be set aside at the seat. According to the Kammergericht, for the Respondent state to object to enforcement now was in contradiction to its previous stance and against good faith. With respect to the Respondent company, the Kammergericht refused to declare the award enforceable, finding that the application was inadmissible since the company did not own assets in Germany. The Kammergericht concluded that its finding of inadmissibility was not barred under the NYC as it did not involve a decision on the merits of the dispute and the NYC did not address general admissibility requirements in addition to the specific requirements stipulated in the NYC. reversed by : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1318&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 18 May 2006 Case number 20 Sch 13/04 Applicable NYC Provisions V | V(1)(a) Source DIS Summary In 2004, an award was issued in favor of the Claimant by a sole arbitrator at the International Chamber of Commerce (ICC) in Shanghai. The Parties' contract referred to the standard FIDIC arbitration clause. In September 2004, the Peoples' Court of X rejected the Claimants' application for enforcement and had held the arbitration clause to be invalid because it did not designate an arbitral tribunal or institution. The Claimant then sought declaration of enforceability at the Peoples' Court of Wuxi. A decision in these proceedings was not rendered at the time the Claimant sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) denied enforcement, holding that a final decision of a foreign court on recognition and enforcement binds an enforcing German court. The Chinese court had held the arbitration clause to be invalid according to Chinese law for failing to designate an arbitral institution or tribunal. The Kammergericht considered that recognition must therefore be denied pursuant to Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=282&opac_view=6 Attachment (1)
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