Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden)
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Germany / 07 March 2013 / Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) / N/A / 07/03/2013
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 March 2013 Parties N/A Case number 07/03/2013 Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4127&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 06 August 2008 Case number 11 Sch 02/08 Applicable NYC Provisions V | V(1)(d) Source OLG Dresden Summary On 30 October 2007, an arbitral tribunal in Norway rendered an award in favor of the Claimant. The Defendant commenced an action for annulment of the award in a Norwegian Court of First Instance. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Dresden granted enforcement. It found that there were no grounds for non-enforcement under Article V(1) NYC. It reasoned that the alleged bias of President (under Article V(1)(d) NYC) had to be examined according to Norwegian law, which is equivalent with German law in this regard. The Court rejected the Defendant's claim that the award was invalid because it was rendered after the six-month time limit provided in the applicable arbitration rules, on the grounds this was not a mandatory rule whose non-recognition could invalidate the award. The Defendant had not contested the arbitral tribunal's announcement at the hearing that the award would be rendered after the six-month time limit. The Court further held that the Defendant's contention that the President was biased (which would have been a ground for non-enforcement under Article V(1)(d) NYC) was to be decided according to Norwegian law. The Court again considered that the relevant norm corresponded to German law, and found no again bias in this case. The Court also found it persuasive that there had been no annulment of the award in the country of rendition and none was to be expected. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=290&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 December 2007 Case number 11 Sch 08/07 Applicable NYC Provisions V | V(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Dresden. Languages English Summary The Netherlands-based subsidiary of the US fast food chain “Subway” as Franchisor, and a German Franchisee entered into a contract for the operation of a Subway branch in Germany. The franchise contract was based on the Franchisor’s multi-purpose standard form contract which was governed by the law of Liechtenstein and provided for arbitration by sole arbitrator, under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), with oral hearings to be held in New York, administered by an arbitration institution, such as the International Centre for Dispute Resolution. A dispute arose and the Franchisor initiated arbitration proceedings before the American Dispute Resolution Center in Glastonbury, New York, and obtained a favourable arbitral award which it sought to enforce in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. 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 upon, 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=1303&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 31 January 2007 Case number 11 Sch 18/05 Applicable NYC Provisions V | V(1)(e) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary The Applicant, a U.S. company, entered into a sales contract with a manufacturer of tractors owned by the Belarusian state. The contract provided for arbitration at the Belarusian Chamber of Commerce and Industry in Minsk. A dispute arose and the Applicant initiated arbitration proceedings. An award was rendered in favor of the Applicant, which was set aside by the Supreme Commercial Court of Belarus upon application by the Belarusian company. The Applicant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Dresden against the Respondent, a German subsidiary of the Belarusian company. The Respondent opposed enforcement, arguing that, inter alia, the award had been set aside in Belarus and moreover, that it had only been signed by two of the three arbitrators. The Applicant contended that the annulment decision by the Supreme Commercial Court of Belarus should not be recognized because Belarus was a dictatorship and the Supreme Commercial Court had acted to protect the financial interests of the head of state rather than the legal order. The Applicant further submitted that the enforcement of the award was subject to the European Convention on International Commercial Arbitration of 1961 (the “ECICA”), Article 9 of which provided that the annulment of an award would only constitute a ground for refusal of enforcement in a contracting state if arbitration agreement was invalid or if the arbitration proceedings were not in accordance with the agreed arbitration rules. The Applicant argued that neither of these conditions had been met. The Applicant stated that the ECICA was applicable even though only Belarus, but not the United States, was a party to the ECICA. It reasoned that the trade agreement signed between Belarus and the United States provided that each contracting party was to treat the other contracting party no less favorably than any other state with which the contracting party had entered into a treaty. The Oberlandesgericht refused to declare the award enforceable. It held that the enforceability of the award was subject to Section 1061 of the German Civil Procedure Code in conjunction with the NYC and the ECICA. The Oberlandesgericht found that the application of the ECICA was not hindered by the fact that the United States and Belarus were both parties to the NYC. It further noted that Article 9 ECICA limited the application of Article V(1)(e) NYC to only those cases of setting aside which were enumerated in Article 9 ECICA. The Oberlandesgericht found that the ECICA was applicable on the basis of the most favorable treatment principle contained in the trade agreement between the United States and Belarus. The Oberlandesgericht noted that, as compared to the NYC, the ECICA accords a greater degree of deference to the autonomy of economic agents who submit their disputes to arbitration. It noted that this promoted the free exchange of goods, which was an objective of the most favored nation principle. Finally, the Oberlandesgericht found that the annulment of the award in Belarus was in compliance with the annulment grounds under the ECICA and the annulment decision therefore had to be accepted. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1315&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 November 2005 Case number 11 Sch 07/04 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted the application for declaration of enforceability of the arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the Respondent had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was to be declared enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application also met the relevant formal requirements, as it had supplied a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the Applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law and, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1313&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 02 November 2005 Case number 11 Sch 15/05 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted enforcement of an arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the enforcement debtor had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application fulfilled the relevant formal requirements, as it had submitted a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1312&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 30 March 2005 Case number 11 Sch 0005/05 Applicable NYC Provisions V | IV Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary A dispute arose between two parties with respect to an outstanding payment for an airplane. The Arbitration Court of the Economic Chamber of the Czech Republic rendered an award partially granting the Applicant’s claims, which the Applicant sought to enforce in Germany. The Respondent did not raise any objections to the enforcement of the award. The Oberlandesgericht (Higher Regional Court) Dresden declared the award enforceable, finding that the application for enforcement met the requirements of Article IV NYC. It observed that the Respondent had neither raised nor proven the existence of any non-enforcement grounds under Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1326&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 13 January 1999 Case number 11 Sch 06/98 Applicable NYC Provisions V | V(2)(b) Source DIS Summary In Spring 1992, the Claimant negotiated a sales contract with Company X. During negotiations preceding the sale, the general manager of Company X allegedly received a copy of the Claimant's general conditions of sale, which contained an arbitration clause providing for arbitration at the International Chamber of Commerce (ICC). By confirmation of order in May 1992, the sale was concluded between the Claimant and the first Defendant, who is a general partner in the second Defendant. The Claimant allegedly enclosed its conditions with its confirmation of order. The Claimant then sold other goods to the first Defendant and attached its general conditions to the confirmations for these sales. A dispute arose between the parties when the Defendants alleged that the product was defective and refused to pay part of the sales price. The Claimant obtained a favorable ICC award for damages amounting to unpaid sale price, and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Oberlandesgericht Dresden granted enforcement, finding that no grounds for refusal under Article V(2)(b) NYC existed. Although it considered that German law prohibits an agreement for lump sum damages in general conditions of sale, in this case lump sum damages were permitted under the law applicable to the dispute, and were not so high as to be at odds with German public policy. The Oberlandesgericht reached the same conclusion with respect to the arbitral tribunal's decision on attorney's fees. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=243&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 20 October 1998 Case number 11 Sch 04/98 Applicable NYC Provisions V | V(1)(b) | V(1)(d) Source DIS Summary The Claimant sought enforcement of an award from the International Commercial Arbitration Court in Russia. The Defendant raised several objections to enforcement pursuant to Article V NYC. The Oberlandesgericht (Higher Regional Court) Dresden granted enforcement. It found that the arbitral tribunal was correctly constituted and rejected the Defendant's objections based on Article V(1)(d) NYC. It further found that the Defendant did not make use of its right to appoint an arbitrator within 30 days, and thereafter the President of the Moscow Chamber of Commerce had complete discretion in the appointment of the arbitrator (and did not have to appoint a German speaker as the Defendant alleged). According to the Court, the Defendant was duly notified of arbitral proceedings and had been accorded a fair hearing, and therefore there were no grounds for non-recognition under Article V(1)(b) NYC. There was no violation of public policy that would require non-enforcement under Article V(2)(b) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=242&opac_view=6 Attachment (1)
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