Germany, Oberlandesgericht München (Higher Regional Court of Munich)
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Germany / 14 November 2011 / Oberlandesgericht München / 34 Sch 10/11
Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 14 November 2011 Case number 34 Sch 10/11 Applicable NYC Provisions V | V(2)(b) | V(1)(d) | V(1)(b) Languages English Summary Two German companies entered into a settlement agreement regarding a corporate acquisition operation. The settlement agreement provided for arbitration in Zurich under the DIS (German Institution of Arbitration) Rules. The Claimants initiated proceedings claiming for damages for breach of the settlement agreement. The Defendant argued that the damages were contractually limited to the value of a property which was lower than the amount claimed for. The arbitral tribunal granted the full amount of damages finding that the value was assessed by the Claimants' expert and had served as a basis to the Parties' settlement negotiations. Also considering other factual elements, the arbitral tribunal held that the Defendant's expert report which came to a lower value was not convincing in this regard. The Claimants sought enforcement in Germany. The Defendant opposed the application of enforcement arguing a violation of its right to be heard by the arbitral tribunal. The Defendant asserted that the arbitral tribunal which lacked proper expert knowledge, had violated its right to be heard by following the Claimants' expert valuation without itself assessing the question by application of a proper valuation method, without appointing an expert and without adressing the Defendant's expert report. The Claimants submitted, on the contrary, that the arbitral tribunal was not obliged to appoint an expert as the German Civil Procedure Code which would have required such an appointment does not apply but the DIS Rules the parties had agreed on. The Claimants further asserted that the tribunal's assessment of the evidence was correct and would not amount to a violation of German "ordre public", in any event. The Oberlandesgericht (Higher Regional Court) München declared the award enforceable. It held that the right to be heard as a basic principle laid down in the German Constitution (Article 103(1) Grundgesetz) also applies to arbitration. Therefore, the arbitral tribunal needs to consider the Parties' position and their applications on the admission of evidence concerning facts relevant to the case. With regard to the alleged violation of Articles V(1)(b), V(2)(b) and V(1)(d) NYC, the Oberlandesgericht found that in the case at hand, the arbitral tribunal did consider the question of the property's value, and discussed in detail which expert's view should prevail. The Oberlandesgericht further found that the arbitral tribunal had the right to proceed the way it did in the framework of the DIS Rules. Thus, the tribunal did not violate the Defendant's right to be heard. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=536&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 11 July 2011 Case number 34 Sch 15/10 Applicable NYC Provisions V | V(1)(a) Languages English Summary A Ukranian and a German company entered into a sales agreement containing an arbitration clause providing for arbitration before the International Court of Arbitration of the Zurich Chamber of Commerce. Shortly therafter, the parties entered into a supplementary agreement providing for arbitration before the Ukranian Chamber of Industry and Commerce in Kiev. The Ukranian party obtained an award against the German party before that tribunal in Kiev and sought enforcement thereof before the Oberlandesgericht (Higher Regional Court) München. The German Defendant argued that the second arbitration agreement was invalid as it constituted a mere collusion ("Scheingeschäft"). The German Defendant argued that it only agreed to this provision as the Ukranian party had pretended that it was a pro forma requirement of the Ukranian customs authority in order to be able to continue to export the goods. The Claimant, for its part, countered that the supplementary agreement had been entered into for cost reasons. The Oberlandesgericht granted the enforcement. It held that the Defendant was certainly already barred from invoking the invalidity of the agreement as it had not done so before the arbitral tribunal. Moreover, the Court did not find the agreement to constitute a collusion under Ukranian law applicable to that question. In particular, it held that if it is true that the party seeking enforcement always bears the burden of proof with respect to the existence of a valid arbitration agreement, the opposing party alleging that an agreement is a collusion yet bears the burden of proof for that allegation. The Court held that the Respondent has not satisfied that burden of proof. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=538&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 12 October 2009 Case number 34 Sch 20/08 Applicable NYC Provisions II | II(2) Source DIS Summary A dispute arose over an order under a sales contract, which referred to the Buyer's General Conditions of Contract (GCC), which provided for jurisdiction of a state court. The English version of the Seller's GCC provided for resolution of disputes by the Stockholm Chamber of Commerce, while the Swedish version provided for the jurisdiction of a Swedish arbitral tribunal. In 2007, the Seller commenced arbitration at the SCC seeking damages for breach of contract. The German Buyer objected to the jurisdiction of the SCC. The SCC rendered an award in favor of the Seller in June 2008, finding that the Parties had concluded during the course of two telephone conversations a valid contract, which included the arbitration clause in two telephone conversations. The seller sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court Munich) refused to enforce the award, finding that the Claimant had failed to prove the existence of an arbitration agreement, and that it was not bound by the findings of the arbitral tribunal in this regard. The Oberlandesgericht re-examined the evidence and concluded that no agreement had been concluded, either orally or through the sending of a confirmation order (which substantially differed from the original order). The Oberlandesgericht considered that the Defendant's objection was not precluded because it had failed to contest the award in Sweden. It reasoned that a party that does not submit to the jurisdiction of the tribunal cannot be expected to commence setting aside proceedings in the country where the award was rendered. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=304&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 01 September 2009 Case number 34 Sch 14/09 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source DIS Summary In 2006, the Parties concluded a sales contract to be governed by the Convention on the International Sale of Goods, the Incoterms of the International Chamber of Commerce and Canadian law, with disputes to be resolved by arbitration at the Stockholm Chamber of Commerce (SCC). A dispute arose and the Buyer commenced arbitration at the SCC and obtained a favorable award from a sole arbitrator in 2008. The Buyer then sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court of Munich) granted enforcement of the award. It reasoned that the Buyer, by supplying a copy of the award certified by counsel, had complied with the less strict formal requirements of German law, which applied in virtue of the more-favorable-right rule under Article VII(1) NYC. German law does not require that the party seeking enforcement to supply the original arbitration agreement or a copy thereof. The Court considered that there were no grounds to refuse enforcement under Article V NYC. In particular, the enforcement of an award of compensation for legal costs did not violate German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=307&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 22 June 2009 Case number 34 Sch 26/08 Applicable NYC Provisions VII | V | VII(1) | V(1)(d) | V(1)(b) Source DIS Summary The Parties entered into an exclusive distribution contract in February 2001, which expired on 31 December 2010. The contract was governed by Spanish law with an arbitration clause for resolution of disputes before the Arbitration Court at the Madrid Chamber of Commerce (MCC), with proceedings in English. The Claimant terminated the contract on the grounds of the Defendant's non-performance and initiated arbitration. The MCC issued an award in the Claimant's favor on 1 February 2007. The Defendant filed an action before the Madrid Court of Appeal to set aside the award, which was denied. The Claimant then sought to have the award enforced in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement, finding that the Claimant had complied with the formal requirements for recognition under German law, which applied in virtue of the more-favorable-right provision at Article VII(1) NYC, by supplying a copy of the arbitral award certified by counsel. The Court considered that the decision of the Madrid Court of Appeal that the award was valid despite having been signed by two of three arbitrators was binding on the enforcing court in Germany. It considered that there were no grounds for denying recognition under Article V(1)(d) or Article V(1)(b) NYC. The fact that Spanish was used in the arbitration (rather than English) did not contravene the Parties' agreement, because they also agreed to the application of the MCC rules which provide for proceedings in Spanish. Nor did the language of the proceedings violate due process, as the Defendant failed to show that this prevented the presentation of its case. 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)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §30
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §58
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=301&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 11 May 2009 Case number 34 Sch 23/08 Applicable NYC Provisions VII | IV | VII(1) Source DIS Summary In October 2005, the Defendant made out a bill of exchange in favor of the Claimant, which was due in December 2005. The Parties concluded an agreement referring disputes relating to the bill to the Arbitration Court of the Czech Chamber of Commerce, to be governed by Czech law. The Defendant paid only part of the debt and the Claimant commenced arbitration. The Defendant alleged that in the course of the proceedings, the Parties agreed to payment by installments. In 2007, a sole arbitrator rendered an award in favor of the Claimant, who sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court Munich) granted enforcement, finding that the Claimant had complied with the formal conditions for recognition and enforcement under German law (which applied in virtue of the more-favorable-right rule under Article VII(1) NYC) by supplying the original arbitral award with a translation. The alleged agreement to pay by installments did not deprive the Claimant of its interest in obtaining a declaration of enforceability in Germany, even if it postponed the date on which payment became due. The date on which the claims awarded in the arbitral award become due is not a condition for the declaration of enforceability. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=298&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 27 February 2009 Case number 34 Sch 19/08 Applicable NYC Provisions V Source DIS Summary The Defendant made use of the Claimant's transportation services but failed to pay for them. The Defendant issued an acknowledgement of debt to the Claimant providing the application of Czech law and for all disputes to be referred to arbitration in Brno. The Defendant failed to pay and the Claimant initiated arbitration proceedings, obtaining a favorable award from a sole arbitrator. The Claimant then sought recognition in Germany. The Oberlandesgericht München (Higher Regional Court Munich) granted enforcement, finding that the Claimant had complied with the formal conditions for seeking recognition under German law (which applied in virtue of the most-favored-right principle at Article VII(1) NYC), as it supplied the copy of the arbitral award, certified by a Czech city district council but not authenticated as required by the NYC. Since German law does not require the party requesting enforcement to supply the arbitration agreement, the form in which it was provided by the Claimant (a simple copy) was irrelevant. The authenticity of the award was undisputed. The Oberlandesgericht found that no grounds for non-enforcement under Article V(1) NYC needed be examined because the Defendant did not raise them. It further considered that there were no grounds for non-enforcement under Article V(2) NYC which it had to examine on its own initiative. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=297&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 19 January 2009 Case number 34 Sch 04/08 Applicable NYC Provisions II | II(2) Source DIS Summary The Parties concluded a manufacturing contract. According to Clause 10.2 thereto, amendments could only be valid if set out in writing and signed by both Parties. The contract further called for application of Ukrainian law and the resolution of disputes by arbitration at the Ukrainian Chamber of Commerce and Industry (ICAC). The Defendant allegedly failed to pay an invoice and the Claimant initiated arbitration, supplying the tribunal with the contract as well as copies of three contractual amendments. The Defendant objected to the jurisdiction of the tribunal on the grounds that it could not be bound by the actions of its employee who authorized the original contract, and that his signatures on the contractual modifications were forgeries. A sole arbitrator assumed jurisdiction over the dispute and rendered an award in the Claimant's favor. The Oberlandesgericht München (Higher Regional Court Munich) denied enforcement. It held that a Party seeking recognition and enforcement has the burden of proving the existence of a valid arbitration agreement. In this case, the Claimant had failed to discharge this burden as it provided no evidence to rebut the Defendant's argument that the contract had not been validly modified. The Oberlandesgericht considered that it was not bound by the factual and legal determinations of the arbitrator in respect of the existence of a valid arbitration clause. In any event, in this case the arbitrator had not found that the Defendant had accepted the modifications. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=296&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 17 December 2008 Case number 34 Sch 18/08 Applicable NYC Provisions VII | VII(1) Source DIS Summary In December 2005, the Claimant concluded a supply contract with Company X by telefax exchange, which included a clause providing for arbitration at Vilnius Court of Commercial Arbitration. Company X failed to pay for certain deliveries, and with the Claimant's permission, subsequently assigned its existing obligations to the Defendant. When the Defendant failed to make further payments, the Claimant initiated arbitral proceedings. The Defendant did not participate in arbitration. The tribunal found mostly in favor of the Claimant, who subsequently sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) München. The Oberlandesgericht München granted enforcement. It ruled that by submitting a certified copy of a non-authenticated award, the Claimant had complied with the formal conditions for enforcement under German law, which applied on the basis of the more-favorable-right provision under Article VII(1) NYC. It further considered German law does not require the party requesting enforcement to supply the arbitration agreement. The Oberlandesgericht noted that the Defendant failed to raise any grounds for non-enforcement under Article V(1) NYC, and considered that there were no grounds justifying non-enforcement by its own initiative under Article V(2) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=295&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 23 February 2007 Case number 34 Sch 31/06 Applicable NYC Provisions VII | V | IV | V(2)(a) | V(1)(e) | V(2)(b) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München.
Languages English Summary The parties – three Austrian companies – entered into a contract under which one of the parties (the Applicant) was to provide certain film production services to the other two parties (the Respondents). A dispute arose regarding payment under the contract and was resolved in favour of the Applicant following an arbitration conducted in Austria under the Rules of the International Chamber of Commerce (“ICC”). The Applicant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) München. The Respondents requested that the Oberlandesgericht stay the enforcement proceedings until the competent court in Austria came to a decision on their application for annulment. The Oberlandesgericht declared the award enforceable and denied the Respondents’ request for suspension of the proceedings. The Oberlandesgericht found that the formal requirements for the issuance of a declaration of enforceability had been fulfilled. Pursuant to the more-favorable-right provision at Article VII(1) NYC, it held that the less stringent requirements of German law were applicable instead of those in Article IV NYC, and that under Section 1064(1) of the German Code of Civil Procedure, the Applicant need only provide an original or a certified copy of the arbitral award, which it had provided. Moreover, in response to one of the grounds raised by the Respondent, the Oberlandesgericht stated that it saw no reason to refuse enforcement under Article V NYC. The Oberlandesgericht also ruled that the subject matter of the dispute, i.e., the obligation of the Respondents to pay for the Applicant’s services, was arbitrable (Article V(2)(a) NYC) and that the recognition and enforcement of the award did not contradict German public policy under Article V(2)(b) NYC, as there was no indication that the arbitration proceedings had violated fundamental principles of German procedural law, or that there had been any other public policy violation. It further concluded that the Respondents’ allegation that the decision was wrong on the merits was not a defence that could be raised in enforcement proceedings. Moreover, the Oberlandesgericht held that under Article V(1)(e) NYC, the possibility of having the award annulled under the law of the seat did not hinder the enforcement of the arbitral award. Lastly, the Oberlandesgericht stated that there was no bar to enforcement in respect of a decision on costs in which the tribunal had ordered the Respondents to bear all of the fees of the arbitral tribunal. The Oberlandesgericht held that this was not an impermissible decision by the arbitral tribunal on its own interests, which could have been refused recognition under Article V(2)(b) NYC, reasoning that the tribunal only decided on the allocation of the costs between the parties and that the uncontested costs of the arbitral tribunal were fully covered by the parties’ advance on costs. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §14
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- 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
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1309&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 25 October 2006 Parties N/A Case number 34 Sch 022/06 Applicable NYC Provisions IV | V | VII Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4137&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 15 March 2006 Case number 34 Sch 06/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(d) | IV(1) Source DIS Summary The parties concluded a manufacturing contract containing a clause referring disputes at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC). A dispute arose when the supplier allegedly failed to pay under several invoices. The Claimant initiated arbitration and obtained a favorable award, and subsequently sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement and rejected the Defendant's objection that the composition of the tribunal was not in accordance with the Parties' agreement, as the tribunal had been composed of one arbitrator rather than two or more arbitrators as agreed in the arbitration clause. The Court held that the Defendant was aware of this composition but did not object to it during the arbitration proceedings, and was therefore estopped from raising this objection during enforcement proceedings. The Claimant had fulfilled the formal requirements for enforcement under Article IV(1)(a) by supplying the original arbitral award together with a certified copy of its German translation. In virtue of the more-favorable-right provision of Article VII(1) NYC, it was not necessary to supply the arbitration agreement as required by Article IV(1)(b) NYC, because domestic German law does not require it. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- 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
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=281&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 28 November 2005 Case number 34 Sch 019/05 Applicable NYC Provisions VII | V | IV | V(2)(b) | IV(2) | IV(1)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München
Languages English Summary The Respondent, a German paint company, engaged the Applicant, a UK construction company, to perform plastering works on certain buildings in the UK. A dispute arose as to the quality of the Applicant’s work and the Respondent refused to pay the Applicant for the work done. The parties went to arbitration and a sole arbitrator rendered an award granting part of the Applicant’s claims. The Applicant sought enforcement of the partial award in Germany. The Respondent objected to the enforcement contending, in particular, that the award should not be enforced since the sole arbitrator had not taken into account certain facts presented by the Respondent. The Oberlandesgericht (Higher Regional Court) München granted enforcement stating that the application for a declaration of enforceability met the formal requirements under German law (Sections 1025(4), 1061(1), 1064(1) and (3) of the German Civil Procedure Code. It noted that the Applicant had submitted the original award as well as a translation in German. It further stated that to the extent that Article IV NYC contained additional requirements regarding the submission of documents and their respective quality, pursuant to the more-favorable-right principle at Article VII(1) NYC, the less stringent requirements of German law were applicable instead of those in Article IV NYC . The Oberlandesgericht concluded that Section 1064(1) of the German Civil Procedure Code, in conjunction with Section 1064(3) of the German Civil Procedure Code were more favorable to the recognition of foreign arbitral awards and were applicable instead of Article IV NYC. The Oberlandesgericht also held that the grounds for refusing enforcement under Article V NYC were not applicable as the Respondent had not raised any of the grounds for refusing enforcement under Article V(1) NYC, and that enforcement could not be rejected based on the Respondent’s claim that the award violated public policy under Article V(2)(b) NYC. The Oberlandesgericht stated that an arbitral award violated public policy only if it violated a norm which affected the basis of German public and economic life or if it constituted an irreconcilable contradiction of German perceptions of justice. It held that public policy also included fundamental principles of procedural law, such as the right to be heard, and that whether there had been a breach of the right to be heard would be assessed on the basis of principles of German law. The Oberlandesgericht further held that it was key whether, from the standpoint of German public policy, the specific result of the application of a foreign law was to be rejected. The Oberlandesgericht concluded that in the present there was no violation of public policy as the Respondent had failed to prove that the arbitral tribunal had indeed ignored relevant facts. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §9
- I / 2. ANALYSIS (I) / ARTICLE I(1) / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §45
- 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)) / b. Procedural public policy / §35
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1324&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 08 March 1995 Parties N/A Case number 08/03/1995 Applicable NYC Provisions VII Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4073&opac_view=6 Attachment (1)
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