Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main)
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Germany / 16 January 2014 / Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) / N/A / 16/01/2014
Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 16 January 2014 Parties N/A Case number 16/01/2014 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(e) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4125&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 27 August 2009 Case number 26 SchH 03/09 Applicable NYC Provisions II | V | V(2)(b) | V(1)(d) | V(1)(b) | II(2) Source DIS Summary The Parties entered into a sales contract in October 2006. In 2007, the employees of both Parties discussed further deliveries under the contract. The Claimant sent a purchase confirmation (providing for resolution of disputes by arbitration) and a signed contract to the Defendant, which explained in more detail the arbitration clause and stated that it would be deemed valid if not returned within 15 days. The Defendant did not sign the contract and informed the Claimant that it would not make further deliveries. The Claimant initiated arbitration at International Cotton Association (ICA) and obtained a favorable award in 2008. The Defendant appealed unsuccessfully at ICA. The Claimant then sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement. It reasoned that the arbitration agreement, thought not “in writing” for the purposes of the NYC, was valid under the formal requirements of German law, which applies pursuant to the more-favorable-right provision at Article VII(1) NYC. It considered that there was no procedural defect justifying non-recognition under Article V(1)(d), as the Defendant was permitted to nominate its arbitrator from an ICA list. Nor was there a violation of due process that could constitute grounds for non-enforcement under either Article V(1)(b) or V(2)(b) NYC. According to the Court, due process is guaranteed when each party can express its opinion concerning the factual and legal aspects of its case, and the tribunal discusses and determines all of the parties' relevant arguments. On the other hand, due process is not violated when a tribunal does not examine all details of the Parties' arguments in the reasons for its decision, or refuses to grant a request for an oral hearing. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=305&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 24 October 2008 Case number 26 Sch 03/08 Applicable NYC Provisions I Source DIS Summary By a contract dated February 2006, the Claimant agreed to supply aluminium castings to the Defendant. The Contract provided for arbitration at the International Commercial Arbitration Court (ICAC) at the Ukrainian Chamber of Commerce and Industry. The Defendant failed to pay for certain supplies, and the Claimant commenced arbitration proceedings, obtaining a favorable award and seeking enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement of the main part of the award. It reasoned that the award was based on a valid arbitration agreement in writing within the meaning of the NYC. The Claimant had complied with the conditions for requesting enforcement and the Defendant did not rely on any grounds for requesting refusal. The Court found the cost award unenforceable on the grounds that arbitrators are in principle prohibited from determining their own costs and fees (except when determined before the arbitration by agreement between the Parties and the tribunal, which was not the case here). Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=292&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 16 October 2008 Case number 26 Sch 13/08 Applicable NYC Provisions V | V(2)(b) Source DIS Summary By contract dated 6 July 2004, the Buyer purchased shares from the Seller. The Parties' contract contained a non-competition clause and a clause providing for arbitration in Switzerland under the Rules of the International Chamber of Commerce (ICC). In 2005, the Buyer initiated ICC proceedings against the Seller for breach of the contract's non-competition provisions. In 2008, an ICC tribunal rendered an award in favor of the Buyer, directing the Seller to pay damages for market disturbance but dismissing the Buyer's request for a seek-and-desist order because the three-year time limit in the non-competition clause had expired. The Buyer sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement, dismissing the Seller's argument that the award could not be granted a declaration of enforceability. It reasoned that the only requirement for enforcement under the NYC is that the award is binding. This was the case here, since under the ICC Rules an award rendered in ICC arbitration is final and binding on the parties. The Court dismissed the Defendant's argument that enforcement would violate German public policy. Even if the Defendant could prove that damages had been awarded arbitrarily, this would not amount to a violation of public policy. If considered that the tribunal's decision on damages was correct under German law and the the applicable Swiss law and was not contradictory or arbitrary. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=291&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 18 October 2007 Case number 26 Sch 1/ 07 Applicable NYC Provisions VII | V | IV | II | VII(1) | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | II(2) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt
Languages English Summary The parties entered into a sales contract that provided for arbitration in Italy pursuant to the arbitration rules of the Camera Arbitrale del Piemonte. A dispute arose and the Seller initiated arbitration proceedings, obtaining a favourable award which it sought to enforce in Germany before the Oberlandesgericht (Higher Regional Court) Frankfurt. The Buyer opposed the enforcement arguing (i) that the arbitration agreement was invalid since it had not been signed by the parties and did not fulfil the form requirements under Italian law, (ii) that its right to be heard had been violated since it had not been properly informed of the constitution of the arbitral tribunal nor duly invited to the oral hearing, (iii) that the tribunal had not been properly constituted, and (iv) that the enforcement was against German public policy since the Buyer had no legal remedies against the award rendered by a sole arbitrator whom it had not appointed. The sole arbitrator had decided ex aequo et bono, even though the arbitration clause did not empower him to do so, the Buyer had not been duly invited to the oral hearing, and the sole arbitrator had violated its right to be heard since he failed to take into account the Respondent’s notice of defects (“Maengelruege”) regarding one of the objects of the sale. The Oberlandesgericht granted enforcement, rejecting all of the Respondent’s arguments. It clarified that the formal requirements under Article IV NYC had been fulfilled, even though the Seller had not provided a duly authenticated original of the arbitration award. The Oberlandesgericht considered that pursuant to Article VII NYC, it was sufficient that the relevant documents fulfilled the less stringent requirements under the applicable German law. It held that these requirements had been met as the Seller had provided the original arbitration award and arbitration agreement. The Oberlandesgericht concluded that the arbitration agreement was valid and enforcement could not be rejected under Article V(1)(a). It considered that it was sufficient that the parties had signed the general terms and conditions containing the arbitration clause. It also held that the invalidity of the arbitration agreement could not be based on form requirements under Italian law, which were more restrictive than the requirements under Article I NYC. It noted that according to Article VII NYC, a court could apply domestic form requirements only if they were less stringent than the form requirements under Article II NYC. The Oberlandesgericht considered that the Buyer was in any event precluded from questioning the validity of the arbitration agreement since it could have done so during the arbitration proceedings but did not. Moreover, the Oberlandesgericht found that there was no basis for rejecting enforcement on the grounds of a violation of the right to be heard under Article V(1)(b) NYC, as the alleged failure to properly inform the Buyer of the constitution of the arbitral tribunal was not relevant because the Buyer had failed to show that it would have raised any additional defences had it been properly informed of such constitution. It followed the same reasoning in relation to the alleged failure to duly summon the Buyer to the oral hearing. The Oberlandesgericht held that under Article V(1)(b) NYC, violations of the right to be heard would only form the basis for rejecting enforcement if such violations had in fact prevented the affected party from raising its claims and defences. The Oberlandesgericht concluded that in this case the Buyer knew of the arbitration proceedings and could thus have raised its defences, but failed to do so. The Oberlandesgericht further stated that even though the arbitral tribunal had not been properly constituted in accordance with the agreement of the parties, this would not justify a refusal of enforcement under Article V(1)(d) NYC because the Buyer should previously have raised the objection in annulment proceedings at the seat of the arbitration, but had failed to do so within the relevant time limit. The Oberlandesgericht noted that the preclusion of a defence under the law of the seat of the arbitration would have to be recognized by an enforcement court in the interest of legal harmony, and it would be unreasonable to preclude a party’s defences against an award only at the arbitral seat but allow them in other contracting states to the NYC. Finally, the Oberlandesgericht found that enforcement could not be denied under Article V(2)(b) NYC based on the various alleged violations of German public policy. The Oberlandesgericht stated it was not a violation of German public policy that there were no legal remedies against the decision of the sole arbitrator noting that arbitration awards were generally not subject to appeal. The Oberlandesgericht further found that, in the present case, the Buyer’s non-participation in the constitution of the arbitral tribunal was acceptable under the rules of arbitration of the Camera Arbitrale, and that the sole arbitrator was empowered under the applicable rules to decide ex aequo et bono. It noted that, in any event, the arbitrator had also based his decision on the United Nations Convention on the International Sale of Goods. The Oberlandesgericht further stated that the Buyer’s defence that it had not been duly invited to the oral hearing was precluded also in the public policy context, since the Buyer could have raised the defence in the annulment proceedings at the seat of the arbitration but failed to do so. Finally, regarding the Buyer’s argument that its right to be heard had been violated because the sole arbitrator had failed to consider its notice of defects (“Maengelruege”) regarding one of the objects of the sale, the Oberlandesgericht held that the argument should be disregarded as it would require a review of the merits of the dispute which was prohibited under Article V NYC. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. Estoppel and waiver / §52
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §33
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1302&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 26 June 2006 Case number 26 Sch 28 / 05 Applicable NYC Provisions II | VII | II(1) | II(2) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary The Applicant sought enforcement of an arbitral award rendered in the Netherlands ordering the Respondent to make payment for goods delivered by the Applicant. Following a phone conversation between the parties, the content of which was disputed, the Respondent had sent two purchase orders to the Applicant by fax, which included a reference to the exclusive application of the Respodnent’s general purchasing terms and conditions . The Applicant confirmed receipt of the purchase orders by fax, adding that the purchase orders were subject to the Rules for the Graphic Industry in the Netherlands, which contained an arbitration clause. The Respondent did not respond to the confirmation. Subsequently, the Respondent failed to pay the purchase price and the Applicant initiated arbitration proceedings. During the proceedings, the Respondent did not present arguments on the merits. The tribunal issued an award granting Applicant’s claims and the Applicant sought recognition and enforcement of the award in Germany. The Respondent opposed the enforcement arguing that it had not agreed to the Applicant’s terms and conditions and there was thus no arbitration agreement between the parties. The Oberlandesgericht (Higher Regional Court) Frankfurt rejected the application for recognition, finding that there was no arbitration agreement in writing between the parties as per Article II(2) NYC and that based on Article III and Article V(1)(a) NYC, the award could not be recognized. The Oberlandesgericht stated that although the absence of an arbitration agreement had to be raised during the arbitration proceedings, omitting to do so did not preclude a respondent from raising a defense based on the absence of an agreement in writing, as per Article II NYC, at the enforcement stage. The Oberlandesgericht stated that under Article II(2) NYC, an “agreement in writing” as mentioned in Article II(1) NYC meant an arbitration clause in a contract or a separate arbitration agreement which was signed by the parties or was contained in an exchange of letters or telegrams between the parties. It stated that the burden of proving the existence of such a written agreement rested on the party seeking enforcement. The Oberlandesgericht concluded that based on the Applicant’s allegations alone it was clear that the parties had not concluded an “agreement in writing,” as required under Article II(2) NYC. The Oberlandesgericht clarified that Article II(2) NYC required an exchange of documents between the parties and that a unilateral transmission of a contract was insufficient, in the same way that a unilateral written confirmation of an oral agreement would be insufficient. The Oberlandesgericht added that an oral agreement or tacit acceptance of a contractual offer did not satisfy the requirement of an agreement in writing under Article II(2) NYC. Finally, the Oberlandesgericht held that the requirement that the arbitration agreement be in writing, as per Article II NYC, could not be disregarded based on the more-favorable-right provision of Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1321&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 26 September 2002 Case number 26 W 101/02 Applicable NYC Provisions V | V(1)(e) Source DIS Summary The Kammergericht (Higher Regional Court Berlin) granted enforcement of an arbitral award rendered by the International Chamber of Commerce (ICC) in Sweden, in favor of an Investor against an agency of the Russian Federation. A temporary stay of execution was ordered by a Stockholm court. The Investor brought attachment proceedings before the Landgericht (Regional Court) Frankfurt. The Russian Federation appealed, arguing that the award was not final and binding and should therefore be denied enforcement pursuant to Article V(1)(e) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt dismissed the appeal, holding that the Russian Federation was estopped from raising that the award was not final and binding, as it had not raised this objection in the previous enforcement proceedings before the Kammergericht. The Oberlandesgericht also rejected that the execution of the award would violate the principle of sovereign immunity. It considered that the Russian Federation had failed to prove that the accounts that had been attached were earmarked for sovereign aims. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=262&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 10 November 1993 Case number 27 W 57/93 Applicable NYC Provisions VI Source Original decision obtained from the Oberlandesgericht Frankfurt Languages English Summary A foreign party sought enforcement of an arbitral award rendered in India. The German party resisted enforcement arguing, inter alia, that the foreign party failed to provide security as required of foreign claimants under German procedural law. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main held that such security was not necessary because a party seeking enforcement of an arbitral award was not considered a claimant under Section 110(1) of the German Civil Procedure Code as it was not bringing a claim but only defending a right already obtained in arbitration. It held that under Article VI NYC, the court may only order the party resisting enforcement to provide adequate security, but not the party seeking enforcement see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=918&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 29 June 1989 Case number 6 U (Kart) 115/88 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary Following arbitration proceedings administered in Moscow by the Maritime Arbitration Commission at the USSR Chamber of Commerce and Industry in Moscow (MAC), a Soviet party obtained a favourable award in a shipping dispute against a German party. Enforcement was granted in Germany by the Landgericht (Regional Court) Kassel. The German party appealed the decision to the Oberlandesgericht (Higher Regional Court) Frankfurt, arguing, inter alia, that it had been coerced against its will to enter into the arbitration agreement with the Soviet party. The Oberlandesgericht dismissed the appeal and confirmed the Landesgericht’s decision that the award was enforceable in Germany. The Oberlandesgericht found that the Soviet party was allowed to seek enforcement not only under the German-Soviet Agreement on General Matters of Trade and Navigation of 1958, but also under more-favourable provisions under German domestic law. The Oberlandesgericht noted that the most-favourable right principle was explicitly set out in Article VII(1) NYC to which both Germany and the Soviet Union were parties. It further held that the principle is applicable not only in relation to treaties, but also in relation to domestic law since no party should be denied enforcement of an arbitral award based on a treaty when the relevant domestic law allows enforcement Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=927&opac_view=6 Attachment (1)
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