Germany, Oberlandesgericht Schleswig
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Germany / 16 June 2008 / Oberlandesgericht Schleswig / 16 Sch 02/07
Country Germany Court Germany, Oberlandesgericht Schleswig Date 16 June 2008 Case number 16 Sch 02/07 Applicable NYC Provisions V | VI Source DIS Summary The Parties concluded a framework supply contract in 1996 containing a clause for settlement of disputes by either arbitration in Denmark or before Danish courts. A dispute arose and the Claimant commenced arbitral proceedings. An award was rendered in 2007 granting each Party its claim, with the difference between the claims in the Claimant's favor. The Defendant sought annulment in Denmark, which was denied at First Instance. The Defendant appealed the First Instance decision, which was pending at the time the Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement, finding that the enforcement of the award would not violate public policy because the Defendant had been granted the opportunity to have the award reviewed by a Danish court. The Court exercised its discretion not to stay proceedings pending the Defendant's appeal in Denmark against the decision of the Danish court, noting that the First Instance annulment action had already been decided in the Claimant's favor. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=289&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 15 July 2003 Case number 16 Sch 01/03 Applicable NYC Provisions VII | VII(1) Source DIS Summary The Parties concluded two sales contracts which each contained a clause for arbitration of all disputes at the International Commercial Arbitral Tribunal at the Chamber of Commerce and Industry of Ukraine. A dispute arose concerning the Buyer's performance. The Seller initiated arbitration proceedings and the Buyer did not appear. The Seller obbtained a favorable award and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Schleswig. The Oberlandesgericht Schleswig granted enforcement, finding that the Seller had met the formal requirements for seeking enforcement under German law, which applied on the basis of the most-favorable-right provision at Article VII(1) NYC. It considered that there were no grounds for refusal to be examined ex officio. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=266&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 30 March 2000 Case number 16 SchH 05/99 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(a) | IV(1)(b) | II(2) Source DIS Languages English Summary The Defendant purchased goods from the Claimant since 1995. In 1997, the Defendant placed an order and the Claimant confirmed the sale by telefax using its standard form which contained a reference to the General Conditions of Sale printed on the reverse side which on its face contained an arbitration clause providing for arbitration at the Court of Arbitration of the Hungarian Chamber of Commerce. The Claimant only sent the front side of the contract form which the Defendant signed and faxed back to the Claimant. The dispute arose and the Claimant commenced arbitration proceedings. The Court rendered a preliminary award in the Claimant’s favor and thereafter a final award which the Claimant sought to enforce before German Courts. The Oberlandesgericht (Higher Regional Court) Schleswig enforced the award, holding that both the requirements of Article IV NYC and Sections 1061 and 1064 of the ZPO (Zivilprozessordnung) had been met. The Court deemed that the contract form signed by the Defendant and faxed to the Claimant fulfilled the formal requirements of Article II(2) NYC. The Court dismissed the Defendant’s objection based on Article V(1)(a) NYC, by stating that Article V(1)(a) presupposes a formally valid arbitration agreement which the Claimant has the burden to prove. The Court stated that the substantive rule in Article II(2) prevails over any national law “be it more or less strict as to the formal requirements”. Moreover, the Court stressed that the Defendant cannot argue that it was not aware of the arbitration clause printed on the reverse side as the Parties were in ongoing business relationship pursuant to which the Claimant would always use the same form for the conclusion of its contracts with the Defendant. Accordingly, the Court stressed that even if there were no formally valid arbitration agreement, this defect would have been cured since the Defendant failed to object the tribunal’s jurisdiction during the arbitration and thus waived its right to object at a later stage of the proceedings. The Court specified that the prohibition of contradictory behavior is a legal principle that needs to be taken into account within Article II(2). The Court found that the fact that the Defendant did not initiate annulment proceedings before Hungarian Courts did not preclude it from resisting enforcement under Article V(1)(a) . The Court further found that it was not bound by the arbitral tribunal’s finding on jurisdiction and found that under the applicable Hungarian provision, the formal defect was cured when the Defendant entered into the merits of the arbitration claim without objecting the substantive validity of the arbitration agreement. Finally, the Court dismissed alleged violation under Article V(1)(d) NYC, based on the fact that the procedural language of the arbitration was Hungarian, since the Defendant had a Hungarian counsel, and found the award was not contrary to German public order pursuant to Article V(2)(b). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=423&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 24 June 1999 Case number 16 SchH 01/99 Applicable NYC Provisions V | V(2)(b) | V(1)(c) | V(1)(a) Source DIS Summary The Parties entered into a five-year contract containing a clause for arbitration at the International Chamber of Commerce (ICC). The Defendant terminated the contract and the Claimant, a successor to a State enterprise that had signed the arbitration agreement, obtained a favorable award from a sole ICC arbitrator. In the course of the arbitration, the ICC had dismissed the Defendant's challenge to the sole arbitrator for bias. The Claimant sought to enforce the award in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement. It held that there were no grounds for non-enforcement under Article V(1)(a) NYC, as it was bound by the arbitrator's finding on legal and factual grounds that the Claimant was a successor to the signatory of the agreement. Nor were there grounds for non-enforcement under Article V(1)(c) NYC, as it was equally bound by the arbitrator's finding that the Claimant's claim for payment was covered by the arbitration agreement, and this argument could not be raised in enforcement proceedings. According to the Court, there had been no violation of due process justifying non-enforcement under Article V(1)(b) NYC or bias justifying non-enforcement under Article V(1)(d) NYC. Nor was there any violation of public policy under Article V(2)(b) NYC. It reasoned that the recognition of foreign awards is subject to a less stringent regime than domestic awards because there is a distinction between international and domestic public policy. The recognition of foreign arbitral award is to be denied only in instances of obvious and grave defects that affect fundamental legal principles. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=244&opac_view=6 Attachment (1)
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