Germany, Oberlandesgericht Celle
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Germany / 31 May 2007 / Germany, Oberlandesgericht Celle / 8 Sch 06/06
Country Germany Court Germany, Oberlandesgericht Celle Date 31 May 2007 Case number 8 Sch 06/06 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | IV(2) | IV(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Celle.
Languages English Summary The Parties – a German Licensee and a Finnish Licensor – concluded a License Agreement which provided for arbitration in Finland. The Licensee terminated the agreement and filed claims against the Licensor before the Landgericht (Regional Court) Hamburg. The Landgericht declined jurisdiction on the ground that the License Agreement contained an arbitration clause. The Licensee subsequently initiated arbitration proceedings in Finland. The arbitral tribunal dismissed the Licensee’s claims and granted the Licensor’s counterclaims. The Licensor sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Celle. The Licensee objected to the enforcement arguing, inter alia, that the parties’ business relationship was merely based on an implicit oral agreement and that the License Agreement, including the arbitration clause, existed only in draft form so that the Licensor was incapable of providing the original arbitration agreement as required under Article IV(1)(b) NYC. In addition, the Licensee alleged that the sole arbitrator had been biased because he was a member of an association to which a shareholder of the Licensor belonged. According to the Licensee, the arbitrator’s bias were evidenced by the fact that the award one-sidedly favoured the Licensee and disregarded the Licensee’s substantive arguments and its applications for the submission of evidence. The Licensee also alleged various irregularities regarding the arbitration proceedings. The Oberlandesgericht rejected the Licensee’s claims and declared most of the award to be enforceable. It first stated that the formal requirements for recognition of arbitral awards set out in Articles IV(1)(a) and IV(2) NYC had been met. It concluded that as the Licensor had submitted the original award and its translation, under German law, which was applicable by virtue of the more-favorable-right provision at Article VII NYC, it was not necessary for an applicant to submit the arbitration agreement (Section 1064(1) of the German Civil Procedure Code). The Oberlandesgericht also found that the substantive requirements for granting enforcement had been met, since none of the grounds for denying enforcement under Article V NYC were applicable. With reference to Article V(1)(a) NYC, the Oberlandesgericht noted that it did not need to decide whether the arbitration clause contained in the “License Agreement” was valid or not since the Landgericht’s earlier decision confirming the validity of the arbitration agreement had a res judicata effect. Moreover, given that the Licensee had initiated arbitration proceedings on the basis of the same arbitration agreement, it was now precluded from asserting that the arbitration agreement was invalid. Furthermore, the Oberlandesgericht rejected the Licensee’s argument that its right to be heard had been violated by the arbitrator, finding that the parties had been given a full opportunity to present their case, and that the right to be heard, as provided in Article V(1)(b) NYC, did not protect a party against an arbitral tribunal’s decision to disregard evidence applications by the parties based on formal or substantive reasons. The Oberlandesgericht also rejected the Licensee’s arguments regarding procedural irregularities under Article V(1)(d) NYC. Moreover, the Oberlandesgericht also rejected the Licensee’s arguments regarding a violation of German public policy under Article V(2)(b) NYC holding, first, that there was no evidence that the sole arbitrator’s membership in the association to which the Licensor happened to belong had affected the sole arbitrator’s impartiality and, second, that the findings in the award also did not violate German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1308&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 14 December 2006 Case number 8 Sch 14/05 Applicable NYC Provisions VII | V | IV | II | V(1)(b) | VII(1) | V(1)(a) | IV(2) | V(1)(d) | IV(1)(a) | II(2) | II(1) Source Original decision obtained from the registry of the Oberlandesgericht Celle
Languages English Summary A ship-owner and a charterer negotiated two charter-parties but signed only one. The charter-parties referred to the arbitration clause contained in the GENCON 1994 charter-party template, which provided for arbitration in London. Subsequently, the ship-owner initiated arbitration, claiming a breach of the unsigned charter-party, and obtained a favorable award. The ship-owner applied for enforcement before the Oberlandesgericht (Higher Regional Court) Celle, which was opposed by the charterer, who also sought annulment of the award by the Oberlandesgericht on the grounds that (i) the charter-party was not enforceable, (ii) that the parties had not concluded a valid arbitration agreement and therefore the arbitrator did not have jurisdiction, (iii) that the arbitration had not been conducted in accordance with English law, which, it argued, permitted an arbitrator to assume jurisdiction only when the existence of an arbitration agreement was undisputed between the parties - which it was not - and that the arbitrator’s decision nevertheless to assume jurisdiction violated German public policy, and (iv) that it had not received a request to nominate an arbitrator and had not yet received a copy of the award. The ship-owner replied saying that (i) the arbitrator had held that the unsigned charter-party, and thus the arbitration agreement, had been validly concluded, (ii) that the charterer had not raised any concerns as to the existence of the arbitration agreement during the arbitral proceedings and could not do so now, and (iii) that the arbitration proceedings did not violate any fundamental legal principles of the Federal Republic of Germany. The Oberlandesgericht declared the award enforceable and denied the request for annulment, reasoning that the award had been rendered in England and could therefore only be annulled in England. The Oberlandesgericht found that the ship-owner had fulfilled the requirements for enforcement under Article III NYC as it had supplied a certified copy of the award as per Article IV(1)(a) NYC and a certified translation of the same as per Article IV(2) NYC. The Oberlandesgericht found that pursuant to the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law (Section 1064 (1) and (3) of the German Civil Procedure Code) were applicable, rather than those in Article IV NYC, and German law did not require submission of the original arbitration agreement or a certified copy of the same. It further noted that according to Articles II(1), II(2) and V(1)(a) NYC a written arbitration agreement was required, but based on the more-favorable-right provision at Article VII(1) NYC the less stringent requirements of Section 1031 of the German Civil Procedure Code would apply, whereby “a written document signed by both parties was not mandatorily necessary”. The Oberlandesgericht concluded that the arbitration agreement contained in the annex of the unsigned charter-party met the formal requirements of a valid arbitration agreement. The Oberlandesgericht said that the factual or legal findings of the arbitrator regarding the validity of the arbitration agreement were not binding on it and that enforcement courts were required to make an independent assessment of whether the requirements of Articles II and V NYC had been met. The Oberlandesgericht found that Article V(1)(d) NYC only concerned defenses regarding the “composition of the arbitral authority” or the “arbitral procedure”, and that the question of the validity of the arbitration agreement was a preliminary question that fell under Article V(1)(a) NYC. It reasoned that there was therefore no basis for refusing enforcement under Article V(1)(d) based on the charterer’s argument that under English law arbitrators could only become active if the existence of an arbitration agreement was undisputed between the parties. The Oberlandesgericht found that the charterer’s allegation that they had not received a request to nominate the arbitrator was contradicted by the evidence and therefore Article V(1)(b) NYC was not applicable. It also held that the charterer had not shown that recognition and enforcement of the award would contradict German public policy and that the fact that it had not yet received a copy of the arbitral award did not constitute a violation of German public policy as it was well recognized that an arbitral award could be transmitted during proceedings for its annulment or enforcement. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. Domestic law more favourable than article II / §34
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- 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=1316&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 06 October 2005 Case number 8 Sch 06/05 Applicable NYC Provisions V | V(1)(d) | V(1)(e) | V(2)(b) Source DIS Languages English Summary The Parties concluded a sales contract containing a clause for the resolution of disputes at the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and an ICAC award was rendered in favour of the Claimant. The Claimant sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Celle. The Respondent argued that enforcement should be refused as the arbitration contravened the requirements for pre-arbitration proceedings that were allegedly contained in the Parties' contract. The Respondent further argued that the award was not final and binding on the Parties and should be denied enforcement pursuant to Article V(1)(e) NYC, and the tribunal's award on costs violated German public policy and should be denied enforcement pursuant to Article V(2)(b) NYC. The Oberlandesgericht (Higher Regional Court) Celle granted enforcement, holding that the contract merely contained a non-binding request that the Parties settle disputes by negotiation if possible. The Court also dismissed the Respondent's argument that the award was not yet binding on the Parties. It considered that whether an award is final is to be determined pursuant to the rules under which it was rendered, and that the award was final in this case and had been duly communicated to the Respondent. The Court rejected the Respondent's third argument, holding that it could not review the granting of contractual penalty by the arbitral tribunal since there can be no review of foreign arbitral awards on the merits. The Court held that the penalty, though representing 40% of the main obligation under the contract and being therefore "disproportionally high", did not per se violate the international public policy of Germany. The same principle applied to the decision on costs. In order to violate public policy, additional circumstances such as abuse of economic power would have been necessary. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=371&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 01 March 2004 Case number 11 Sch 01/04 Applicable NYC Provisions IV Source DIS Summary The Claimant requested the Oberlandesgericht (Higher Regional Court) Celle to enforce an award rendered by an Arbitration Court attached to the Economic Chamber of the Czech Republic. The Court granted enforcement, finding that the Claimant had duly supplied documents required by Article IV NYC (namely the authenticated original award, the original arbitration agreement, and a German translation of the award prepared by a certified Czech-German translator). The Defendant did not raise any grounds against the enforcement under Article V(1) NYC. There were no grounds for the Court to refuse enforcement propiu motu under Article V(2) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=273&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 20 November 2003 Case number 8 Sch 02/03 Applicable NYC Provisions V | VI | V(1)(e) | V(2)(b) Source DIS Summary In 1999, the Parties concluded a five-year supply contract containing a clause for the arbitration of disputes at the Stockholm Chamber of Commerce (SCC) and the application of German law. The Parties entered into additional oral agreements pursuant to which the Defendant assumed further obligations. A dispute arose in respect of the Defendant's performance under the terms of the oral agreements, and the Claimant obtained a favorable award from a sole arbitrator at the SCC. The Defendant initiated set-aside proceedings in Sweden, which were pending at the time the Claimant sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Celle. The Oberlandesgericht Celle granted enforcement. It considered that the Defendant failed to prove the grounds for non-recognition under Article V(1)(e) NYC, as the pending action for annulment in Sweden had no impact on award's finality. It further ruled that the Defendant failed to make out any grounds for non-recognition under Article V(2)(b) NYC. The Oberlandesgericht rejected that the proceedings should be stayed pursuant to Article VI NYC. Based on the evidence before it, it considered that the prospects of the success of Defendant's request for annulment were entirely uncertain. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=272&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 18 September 2003 Case number 8 Sch 12/02 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(a) | II(1) Source DIS Summary The Parties concluded a sales contract. The Defendant allegedly refused to pay part of contract price and the Claimant commenced arbitration in London. The London Commercial Court appointed a sole arbitrator after the parties failed to reach an agreement concerning the constitution of the tribunal. The arbitrator assumed jurisdiction over the dispute based on the INTERORE general conditions of contract, which contained an arbitration clause. The Claimant obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding no valid arbitration agreement within the meaning of Article II of the NYC, as the parties had neither signed nor mentioned the INTERORE conditions when concluding the sales contract at issue. The writing requirement under the NYC was not superseded by the requirements under German law pursuant to Article VII(1) NYC, since German law requires at least that the Claimant make a written reference to its general conditions when concluding a contract. The Court reasoned that the existence and formal validity of the arbitration agreement should to be assessed independently by the enforcement court when examining the grounds for refusal at Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=268&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 04 September 2003 Case number 8 Sch 11/02 Applicable NYC Provisions V | II | II(1) Source DIS Summary The Claimant sought enforcement in Germany of an award rendered pursuant to a clause providing for arbitration at the China International Economic and Trade Arbitration Commission (CIETAC). The contract had been signed signed by the Defendant's agent for the Asian market with the title "executive director". The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding that it was not bound by the legal and factual findings of a foreign arbitral tribunal regarding its competence, especially with regard to the question of the validity of an arbitration agreement. While in principle, the party opposing enforcement has the burden to prove grounds for refusal under Article V NYC, the party seeking enforcement has the burden to prove the "pre-condition for the existence of the grounds for such refusal", i.e. that the parties have concluded an agreement pursuant to Article II NYC. The Court found that the Claimant had not supplied an "agreement in writing" within the meaning of Article II(1) NYC, as the printout of a fax supplied the Claimant containing the contract was largely illegible, and the "readable copy" of the contract had not been signed. The Claimant had not met its burden of proving that it had validly concluded a contract with the Defendant. The Court reasoned that Chinese law, which does not differ substantially from German law, should be applied to determine whether the agent had a power of attorney, and that under the applicable law the Claimant had no reason to believe that the "agent" had such authority. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=267&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 02 October 2001 Case number 8 Sch 3/01 Applicable NYC Provisions IV | II | V | V(1)(b) Source Original decision obtained from the registry of the Oberlandesgericht Celle Languages English Summary The parties concluded a Frame Contract which provided that disputes should be resolved by “the International Commercial Arbitration Court at the Chamber of Commerce in Russia (ICAC) or by the International Court in …”. A dispute arose between the parties and the Applicant terminated the contract and initiated arbitration proceedings at the International Commercial Arbitration Court of the Chamber of Commerce in Russia. The arbitral tribunal rendered an award in favor of the Applicant who then sought enforcement in Germany. The Respondent opposed enforcement, asserting that (i) it had not been properly heard, (ii) that the ICAC had no jurisdiction to hear the case, (iii) that the entire contractual relationship had been cancelled by the Applicant, and (iv) while the contract had been concluded in both Russian and German, all correspondence from the arbitral tribunal had been exclusively in Russian, which the Respondent could not understand. The Oberlandesgericht (Higher Regional Court) Celle declared the award enforceable, finding that the Applicant met the formal requirements set out in Article IV NYC. The Oberlandesgericht dismissed the Respondent’s contentions that the Russian arbitral institution was not competent and that its jurisdiction had not validly been agreed upon. It found that the Frame Contract contained a permissible and clear arbitration agreement, in compliance with Article II NYC, since the parties had agreed that they could either go before the ICAC or the “International Court in…”. It held that the Applicant had properly made use of the opportunity to turn to the ICAC. The Oberlandesgericht also found that the tribunal’s jurisdiction was not affected by the termination of the contractual relationship by the Applicant because the broadly worded arbitration clause also covered disputes regarding termination of the contract. The Oberlandesgericht dismissed the Respondent’s contention based on Article V(1)(b) NYC that it had not been properly heard during the arbitration and that it had not been given sufficient opportunity to defend itself, finding that it was for the Applicant to obtain an interpreter/translator to be able to fully participate in the arbitral proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1331&opac_view=6 Attachment (1)
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