Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court)
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Germany / 23 September 2004 / Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) / 4 Z Sch 05/04
Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 23 September 2004 Case number 4 Z Sch 05/04 Applicable NYC Provisions VII | V | VII(1) | V(1)(d) Source DIS
Summary The Parties entered in a service agreement, which the Defendant terminated. The Claimant initiated Court proceedings in Syria. The Syrian court decided in the Claimant's favor. The Defendant's Syrian counsel subsequently agreed to arbitrate the claim in Syria, and that the proceedings would take the Syrian Court decision into account. An award was rendered in the Claimant's favor, who then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement. It reasoned that in this case, an objection based on the lack of a written arbitration agreement does not constitute a ground for denying recognition because the objecting party participated in the arbitration without raising any objection to jurisdiction, and also signed a written power of attorney which expressly appointed counsel to represent it in arbitral proceedings. The Court reasoned that German law applies by virtue of the more-favorable-right provision under Article VII(1) NYC, and does not require the party seeking enforcement to also supply the arbitration agreement. In the Court's view, only an essential procedural defect constitutes grounds for refusal of enforcement under Article V(1)(d) NYC, and "essential" in this context means that it caused the tribunal to reach a different decision. Finally, the Court found that the fact that the the Syrian tribunal did not apply German law could not amount to a violation of public policy under Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=276&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 05 July 2004 Case number 4 Z Sch 09/04 Applicable NYC Provisions VII | VII(1) Source DIS
Summary The Claimant, an Austrian lawyer, commenced arbitration in Austria against the Defendant in connection its alleged non-payment of legal fees. The Parties reached a settlement at the hearing. When the Defendant failed to pay the agreed amount, the Claimant sought enforcement of the settlement agreement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement pursuant to the 1959 Austrian-German Treaty, which applies to settlements reached before an arbitral tribunal. The Court considered that the Claimant had also complied with the formal requirements for enforcement under the NYC. The less stringent German requirements for enforcement applied in accordance with the more-favorable-right provision at Article VII(1) NYC. The Claimant had supplied a copy of the minutes of the arbitral hearing where the settlement agreement was concluded and recorded, which was certified by the Tyrol Bar Association and the president of the arbitral tribunal. The authenticity of the settlement agreement reached in the presence of both Parties was undisputed. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=275&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 20 November 2003 Case number 4 Z Sch 17/03 Applicable NYC Provisions V | V(2)(b) Source DIS
Summary The Parties concluded a supply contract providing for the arbitration of disputes at the Court of International Commercial Arbitration at the Chamber of Commerce and Industry of the Russian Federation (ICAC). The Claimant commenced arbitration and at arbitral tribunal's suggestion, the Parties entered into settlement negotiations and agreed that the Claimant would withdraw proceedings if the Defendant paid the amounts in dispute. The Defendant duly paid the amounts, but the Claimant did not terminate the proceedings (concealing the Parties' settlement) and obtained a favorable award. The Claimant then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) denied enforcement pursuant to Article V(2)(b) NYC. It reasoned that even under the less stringent requirements of international public policy, the concealment of a settlement agreement constitutes a gross violation of the basic principles of German law. The jurisprudence of the Federal Supreme Court holding that a party is estopped from raising objections against the award that should have been raised in the course of the arbitration does not apply to public policy objections under Article V(2)(b) NYC. The violation in this case went beyond a mere procedural defect. The Court reasoned that if the award were enforced, the principle of contractual good faith would be violated in a manner that is inconsistent with the German legal system. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=271&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 12 December 2002 Case number 4 Z Sch 16/02 Applicable NYC Provisions VII | II | VII(1) | II(2) | II(1) Summary The Parties entered into negotiations in September 1999 for the export of products from Yugoslavia to Germany. The Claimant allegedly informed the Defendant by telephone that its general conditions provided for arbitration before the Foreign Trade Court of Arbitration (at the Yugloslav Chamber of Commerce). Further negotiations followed and the Claimant made three deliveries. The Claimant drew up the contracts by photocopying its contractual details onto a blank sheet bearing the Defendant's letterhead. The letter contained the Defendant's signature and seal as well as the Claimant's own signature and seal. The Contracts were faxed to the Defendant, who neither confirmed nor contested them. A dispute arose when the Defendant refused to pay the purchase price for goods that were allegedly unsaleable. The Claimant initiated arbitration in Belgrade, the Defendant failed to appear and an award was rendered in the Claimant's favor. The Bayerisches Oberstes Landesgericht (Higher Regional Court Bavaria) denied enforcement, finding that the requirements under Article II(2) NYC had been not fulfilled as there was no "agreement in writing" as neither the requirement of "signature" nor "exchange of letters or telegrams" had been fulfilled. According to the Court, the essential factor in exchange of written statements under the NYC is mutuality, which was lacking in the faxed contracts. It considered that in principle, German law should apply to this question as a result of the the most-favored-right rule under Article VII(1) NYC. However, German law requirements and requirements under the NYC were equivalent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=264&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 22 November 2002 Case number 4 Z Sch 13/02 Applicable NYC Provisions V | VI | V(1)(e) Source DIS
Summary The Claimant sought enforcement of an arbitral award rendered in the United States and confirmed by the Superior Court of California. The Defendant had filed an appeal against the California decision, which was still pending at the time the present decision was rendered. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, reasoning that an award confirmed by a California State Court was enforceable and binding and should not be denied enforcement under Article V(1)(e) NYC. The Court found that the annulment proceedings commenced by the Defendant did not hinder enforcement as they only constituted means to have the award set aside a posteriori, and could not interfere with the enforceability of the award. The Court further found that the Defendant had failed to prove the requirements for grounds for refusal under Articles V(1)(b) and (c) NYC. Taking into account the absence of grounds for refusal or setting aside under Article V, the Court reasoned the pending appeal proceeding in California would not likely succeed and decided that the Defendant's request for suspension under Article VI NYC should be denied. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=263&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 11 August 2000 Case number 4 Z Sch 05/00 Applicable NYC Provisions VII | IV | IV(2) | VII(1) Source DIS
Summary The Parties concluded a construction contract and by additional agreement agreed to refer disputes to arbitration in Moscow. The Claimant obtained a favorable award and sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the Claimant had complied with the formal requirements under German law (which applied pursuant to the most-favorable-right provision under Article VII(1) NYC), which requires that the Claimant supply the award or a certified copy thereof together with the request for enforcement. Under German law, the arbitration agreement and the translations mentioned in Article IV(2) NYC need not be supplied. see also :
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- 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
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=252&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 16 March 2000 Case number 4 Z Sch 50/99 Applicable NYC Provisions V | V(1)(b) Source DIS
Summary The Parties concluded two contracts, both with clauses for the resolution of disputes by arbitration in Moscow. The Claimant commenced arbitration and an oral hearing was held in which the Defendant did not participate. An arbitral tribunal rendered award in the Claimant's favor and the Claimant sought enforcement in Germany pursuant to the NYC and the 1958 German-Russian Treaty on General Issues of Trade and Maritime Shipping. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) denied enforcement, finding that the Defendant had not been duly informed of the arbitration, and that this constituted a violation of due process. The Court reasoned that Russian arbitration law holds that a party is duly informed when it is contacted at its last-known address if no other address can be found after making a reasonable inquiry. In this case, there was no evidence that inquiries had been made to ascertain the Defendant's current address. Although the Defendant did not seek annulment of the award in Russia on the ground of violation of due process, it was not barred from relying on this ground since Article V(1)(b) NYC does not contain a time bar for defenses based on violation of due process. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=250&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 24 February 1999 Parties N/A Case number 24/02/1999 Applicable NYC Provisions V Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4136&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 17 September 1998 Case number BayObLG 4 Z Sch 1/98 Applicable NYC Provisions II | II(2) Summary The Parties concluded a sales contract. The front page was signed referred to the General Conditions of sale on the reverse side as being an integral part of the contract. The General Conditions contained an arbitration clause for resolution of disputes by a sole arbitrator to be appointed by the President of the Law Society in London if the parties failed to agree. A dispute arose between the parties. An appointed arbitrator rendered an award before 1 January 1998, the date on which the New German Arbitration Law entered into force. The Claimant sought enforcement of the English award in Germany after 1 January 1998. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the "agreement in writing" requirement under Article II(2) NYC is fulfilled when - as was the case here - the front page of a contract, signed by both parties, refers to an overleaf with General Conditions containing the arbitration clause in small but readable font as being an integral part of the sales contract. On the other hand, a reference to a separate document would not have met these requirements. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=241&opac_view=6 Attachment (1)
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