Germany, Oberlandesgericht Brandenburg
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Germany / 13 June 2002 / Oberlandesgericht Brandenburg / 8 Sch 02/01
Country Germany Court Germany, Oberlandesgericht Brandenburg Date 13 June 2002 Case number 8 Sch 02/01 Applicable NYC Provisions V | II | II(2) | II(1) Source DIS Summary The Claimant sought payment from the Defendant, who denied it had contracted with the Claimant, arguing that the Claimant had sent an offer to Party X, which was not its agent, and that Party Y was in fact the Claimant's contractual partner. The Claimant commenced arbitration in Helsinski based on general freight forwarding conditions contained in its offer. It obtained award in its favour and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg denied enforcement on the several grounds, despite the fact that the Claimant had duly supplied the original award pursuant to Article IV(1) NYC. The Oberlandesgericht held that the existence of an arbitration agreement in writing is a prerequisite for enforcement under Article II(2) NYC, and must be supplied by the party seeking enforcement. It reasoned that burden of proof provision in Article V(1) NYC does not apply where, as here, the Defendant does not rely on the grounds of invalidity at Article V(1)(a). There was no written statement by the Defendant accepting the arbitration clause, so the Claimant had not fulfilled the conditions of Article II(2) NYC. Even applying German law on the basis of the more favorable right provision at Article VII(1) NYC, there was no arbitration agreement between the Parties. The Oberlandesgericht reasoned that it did not need to decide whether the application of Article VII(1) NYC meant that the Claimant could rely on an arbitration agreement which did not meet the formal requirements of Article II(2) NYC, since the Claimant had not supplied a valid arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=261&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Brandenburg Date 02 September 1999 Case number 8 Sch 01/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary The Parties concluded a contract of sale containing a clause providing for arbitration before the Court of International Arbitration in Kiev. Bankruptcy proceedings were subsequently commenced against the Buyer in July 1998. In October 1998, the Seller obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg enforced the award, finding that the enforcement proceedings were unaffected by the Buyer's bankruptcy, because the declaration of enforceability of a foreign arbitral award is not an executory measure but rather a preliminary measure having no executory effect. The Oberlandesgericht further found that there were no grounds for refusal under Article V(2)(b) NYC. There was no violation of German public policy in this case, as it did not suffice for German substantive public policy to be violated that a German court, if it had decided the dispute, would have reached a different conclusion based on German mandatory law. According to the Oberlandesgericht, for there to be a violation of public policy, the conclusion reached by applying foreign law should contrast in such a manner with the fundamental principles of German law and principles of justice contained therein as to appear unacceptable from a domestic point of view. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=245&opac_view=6 Attachment (1)
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