Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm)
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Germany / 31 January 2013 / Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) / N/A / 18 U 48/12
Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 31 January 2013 Parties N/A Case number 18 U 48/12 Applicable NYC Provisions II Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4059&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 28 November 2008 Case number 25 Sch 09/08 Applicable NYC Provisions V | V(2)(b) | V(1)(e) | V(1)(c) | V(1)(b) Summary In 2000, the Parties concluded a contract setting out the framework for their future business relationship, which provided for the application of Swiss law and the conclusion of separate supply contracts. The contract was amended in 2004, and in 2006 a clause was added providing for arbitration of disputes in Zurich at the Swiss Chambers of Commerce. The Parties concluded separate supply contracts on different dates containing separate payment provisions, but which all provided for the application of Russian law and for arbitration in Moscow under the Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC). A dispute arose in respect of the framework contract and was referred to arbitration in Zurich. An award was rendered in favor of the Claimant and later affirmed by the Swiss Federal Supreme Court. Disputes also arose in respect of four supply agreements, and arbitration was initiated in Moscow. On 17 December 2007, an arbitral tribunal issued four awards in favor of the Claimant, who sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement of the Russian awards by four identical decisions. It found that the Defendant was likely precluded from raising grounds for refusal under Article V(1)(e) NYC because it had failed to commence an action for annulment in Russia. This issue remained open, however, because the Defendant had failed to prove any such grounds. For this reason, no decision on preclusion under Article V(1) NYC was necessary. The Court further found that there were no grounds for non-recognition under Article V(1) NYC. The awards were final and binding in light of the application of the ICAC Rules and the fact that time limit for seeking annulment had expired. The Russian arbitral tribunal had proper jurisdiction, as the supply contracts and framework contract were separate and distinct, and therefore there were no grounds for non-refusal under Article V(1)(c). There was no violation of due process that could justify non-recognition under Article V(1)(b), as the ICAC rules provide for proceedings in Russian. The Oberlandesgericht further found that there were no grounds for non-recognition under Article V(2)(b) NYC. The arbitral tribunal could decide on jurisdiction together with merits under the ICAC rules and under German law, and the Defendant did not prove the alleged bias of one of the arbitrators. It further considered that the arbitral tribunal was permitted to deny the Defendant's request for set-off under the ICAC Rules. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=294&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 27 September 2005 Case number 29 Sch 01/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(2)(b) | V(1)(a) | IV(2) | IV(1)(a) Source DIS Languages English Summary The parties entered into an agreement which provided that the Applicant, an Iranian citizen, would assist the Respondent, a German company, in resolving certain disputes it had with the Iranian authorities in exchange for a “consulting fee”. The agreement contained the following arbitration clause: “All disputes arising in connection with this Letter of Commitment shall be settled in accordance with the laws of conciliation and arbitration of the Geneva Chamber of Commerce. In case of non-settlement, the dispute will be submitted for a final decision to the arbitrators of the Geneva Court of Justice. The rules of conciliation an arbitration of the said court will be binding for both parties”. Subsequently, the Applicant initiated arbitration proceedings at the Geneva Chamber of Commerce, Industry and Services, Geneva (CCIG), seeking payment of outstanding consulting fees. The Respondent participated in the arbitration proceedings but sought a declaration that there existed no valid arbitration clause, the dismissal of the Applicant’s claims, and that conciliation proceedings be conducted following the constitution of the arbitral tribunal. Conciliation proceedings were conducted with no result and thereafter the arbitral tribunal decided on its jurisdiction in an interim arbitral award. The interim award stated that while the arbitration clause was “pathological”, it was nevertheless valid since the parties’ intent to arbitrate disputes in general, and more specifically to refer disputes to arbitration under the auspices of Geneva’s leading arbitral institution, was clear. The arbitral tribunal awarded part of the Applicant’s claims. The Applicant sought enforcement in Germany, to which the Respondent objected, arguing that the arbitration agreement was not valid because the clause was contradictory, and also that one of the signatories had understood it to be a choice of forum clause. The Respondent further argued that enforcement would be contrary to public policy in Germany because the award was rendered in violation of the Respondent’s right to be heard as the tribunal had failed to hear a witness on the issue of the validity of the arbitration agreement, and moreover, the consulting agreement was illegal because it has been concluded for the purpose of financing the payment of bribes. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement, finding that the formal conditions for recognition of the award, as set out in Article IV(1)(a) and IV(2) NYC, had been met as the Applicant had provided certified copies and translations of the final and interim awards. It found that it was sufficient that the Applicant had only provided a copy of the arbitration agreement and not the original because, pursuant to the NYC’s more-favorable-right provision in Article VII(1) NYC, the less stringent requirements Section 1064 of the German Civil Procedure Code were applicable instead of those in Article IV(1) NYC. The Oberlandesgericht rejected the Respondent’s argument that the arbitration agreement was invalid (Article V(1)(a) NYC), reasoning that the Respondent had not only agreed to the constitution of the arbitral tribunal, the conciliation proceedings and to the tribunal deciding its jurisdiction in an interim award, but had also subsequently engaged in arguments on the merits without challenging the interim award under Article 190(3) read with 190(2)(b) of the Swiss Federal Act on Private International Law. It held that it would be a contradiction of the principle of fair and good conduct of proceedings if the Respondent were allowed, after such conduct, to question the validity of the arbitration agreement at the enforcement stage. The Oberlandesgericht stated that there was no established case law to the effect that the NYC would bar such a preclusion. It also held that, in any case, the Respondent’s defense regarding the absence of a valid arbitration clause was unfounded. It dismissed the Respondent’s public policy objections under Article V(2)(b) NYC stating that the Respondent itself had failed to call the relevant witness to testify on the issue in question and that the alleged bribery payments to Iranian officials had not been proven by the Respondent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1320&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 15 November 1994 Case number 29 U 70/ 92 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Oberlandesgericht Hamm Languages English Summary In 1985, the parties, a former Yugoslavian state-owned enterprise (the Applicant) and a German engineering agency (the Respondent), entered into a contract in which the Respondent agreed to represent the Applicant’s interests in Germany in return for the payment of commissions. The contract, which was governed by Swiss law, referred all disputes to the “the Court of Arbitration of the International Chamber of Commerce in Paris at the seat of Zurich”. Subsequently, the Applicant sued the Respondent for breach of contract before the Landgericht (Regional Court) Arnsberg. The Respondent objected based on the existence of an arbitration agreement between the parties, and also brought counterclaims in the state court proceedings. The Landgericht granted the Applicant’s claims and the Respondent’s counterclaims. The Landgericht considered that the arbitration agreement was invalid because it was ambiguous and also because it was not contained in a separate document in conformity with Section 1027 (1) of the German Civil Procedure Code. Both parties appealed the Landgericht’s decision to the Oberlandesgericht (Higher Regional Court) Hamm. The Respondent asserted that the dispute should be referred to arbitration and also raised several substantive arguments. The Oberlandesgericht dismissed the Applicant’s appeal except for certain side claims of the Applicant and granted the Respondent’s appeal. It held that the state courts were competent to decide the parties’ dispute notwithstanding the parties’ arbitration agreement. The Oberlandesgericht found that the arbitration clauses met all relevant form requirements, noting that Article II(2) NYC did not require an arbitration clause to be contained in a separate document. The Oberlandesgericht then stated that the arbitration agreement might be invalid on the basis that it was ambiguous since both the Zurich Chamber of Commerce and the International Chamber of Commerce in Paris had their own arbitration rules. Eventually, the Oberlandesgericht left the issue undecided, finding that the objection regarding the arbitration agreement was contrary to good faith and thus had to be disregarded. The Oberlandesgericht held that a party that was obviously incapable of bearing the costs of arbitration still sought to go to arbitration, it would be acting in bad faith. Here, the Oberlandesgericht concluded that the Respondent did not have the means to pay for the advances of costs of the arbitration given that it had asked for and obtained legal aid in the state court proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1333&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 06 July 1994 Case number 20 U 162/93 Applicable NYC Provisions VII | VII(1) Source OLG Hamm Summary The Parties concluded a contract containing a clause referring all disputes to arbitration at the Foreign Trade Arbitration Court in Belgrade. The Claimant obtained a favorable award, which was granted enforcement in Germany at First Instance. The Defendant appealed. The Oberlandesgericht (Higher Regional Court) Hamm dismissed appeal, finding the request for enforcement to be well-founded. It considered that it was irrelevant that Yugoslavia (where award was rendered) no longer existed as a State. In this case, an arbitration clause was still in existence because it was part of a contract governed by private law, and the enforceability of the arbitral award could not depend on whether the State, in which one of the Parties has a seat, still existed in its earlier form. The Court considered that the Claimant had met the formal conditions for enforcement under German law, which applies in virtue of the more-favorable-right provision at Article VII(1) NYC. No grounds for non-enforcement had been proven under Article V(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=235&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 02 November 1983 Case number 20 U 57/83 Applicable NYC Provisions V | V(2)(b) | V(2)(a) Source Original decision obtained from the registry of the Oberlandesgericht Hamm Languages English Summary A German company obtained a favourable award in an International Chamber of Commerce (ICC) arbitration against an Italian company that had been placed under a regime of special administration and was being represented by a state-appointed commissario. The Landgericht (Regional Court) Bielefeld declared the award enforceable. The Italian company appealed, claiming that it had not been duly represented during the arbitral proceedings because the commisario’s authority to represent the company did not extend to arbitral proceedings. The Oberlandesgericht (Higher Regional Court) Hamm confirmed the Landgericht’s declaration of enforceability. The Oberlandesgericht stated that enforcement may be denied only if (i) the party opposing enforcement proves the existence of any grounds for refusing enforcement under Article V(1) NYC or (ii) the court establishes grounds under Article V(2)(b) NYC. The Oberlandesgericht further stated that non-enforcement grounds under German domestic law could only be considered in the context of the public policy defence under Article V(2)(b) NYC. The Oberlandesgericht found that there were no grounds under Article V(2) NYC to refuse recognition and enforcement of the award. It found that the subject matter in dispute was arbitrable since it concerned a commercial matter (Article V(II)(a) NYC) and that the declaration of enforceability did not contradict German public policy (Article 5(II)(b) NYC). In particular, the Oberlandesgericht held that even if the Italian party were to have been prevented from continuing to participate in the arbitration under Italian law as a result of the establishment of the Italian regime of special administration, this would not justify a finding that the enforcement of the arbitral award violates German public policy. Furthermore, the Oberlandesgericht held that there was no basis for assuming a violation of German public policy in relation to the Italian party’s right to be heard, since the Italian party had not shown that its right to be heard had been severely violated. Finally, the Oberlandesgericht held that since no objections were raised during the arbitration proceedings regarding the Italian party’s representation, it should be deemed that it had accepted any such alleged irregularities. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=922&opac_view=6 Attachment (1)
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