Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe)
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Germany / 23 July 2013 / Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) / N/A / 8 Sch 2/12
Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 23 July 2013 Parties N/A Case number 8 Sch 2/12 Applicable NYC Provisions IV | V | V(1) | V(1)(e) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4058&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 04 January 2012 Case number 9 Sch 02/ 09 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe. Languages English Summary The Claimant had obtained a favourable arbitration award following arbitration proceedings at the International Chamber of Commerce in San Diego, which granted it certain insolvency creditor claims against the Respondent. The Claimant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Karlsruhe, which the Respondent opposed, alleging that the Claimant’s insolvency claims were not arbitrable and that the award violated public policy due to, inter alia, the arbitral tribunal’s alleged erroneous interpretation and application of the law, the conduct of oral hearings at a place different from the seat of the arbitration, the rendering of the arbitral award beyond the regular six-month time limit under Article 24(2) ICC Rules, the alleged sleeping of one of the arbitrators during the arbitration, and the allocation of the entire costs of the arbitration to the Respondent. The Oberlandesgericht dismissed all of the Respondent’s objections and granted enforcement, reasoning that the Respondent could have raised the arguments in the annulment proceedings under the United States Federal Arbitration Act, but had not done so within the applicable time limits, and was now precluded from raising them in the present enforcement proceedings. The Court found that, while Article V NYC did not contain such a preclusion rule, such a rule would be applicable based on German law since Article VII(1) NYC allowed the application of domestic court practice favorable to the recognition of foreign arbitral awards. The Oberlandesgericht also found that, in any event, the Respondent’s objections against enforcement were unfounded. It considered that disputes regarding rights of an insolvency creditor were capable of being resolved by arbitration and also that the award did not violate German public policy under Article V(2)(b) NYC by confirming insolvency claims which had previously been filed in the insolvency administrator’s list of claims, but had thereafter been listed as contested. The Oberlandesgericht noted that the Respondent had failed to recognize that public policy violations regarding international arbitration awards were to be assessed exclusively on the standard of international public policy and that, accordingly, a refusal of enforcement could be justified on public policy grounds only where the arbitral proceedings showed a grave defect that affected the basis of public and economic life in Germany. It concluded that this was not the case for any of the public policy violations raised by the Respondent. In addition, in relation to the alleged lack of attention of one of the arbitrators, the Oberlandesgericht made clear that the Respondent would have had to raise this issue in the arbitration. Finally, as regards the arbitral tribunal’s alleged misapplication of German law, the Oberlandesgericht stated that it could not consider this aspect due to the prohibition to review the award on the merits. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1305&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 05 June 2009 Case number 14 Sch 03/09 Applicable NYC Provisions V | V(1)(a) Languages English Summary A German company ordered goods from a subsidiary of a Swedish company. The Swedish parent company delivered the goods sending along the General Conditions which contained an arbitration clause of the Stockholm Chamber of Commerce. Upon a payment refusal by the German company for deficiencies, the Swedish parent company initiated arbitration proceedings. An award was rendered in its favor. Recognition and enforcement in Germany was sought. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main refused to grant recognition and enforcement. It held that under the applicable Swedish law there was no valid arbitration agreement between the Swedish parent company and the German company. All the orders had been passed by the German buyer with the German subsidiary of the Swedish company. There was not sufficient proof that this subsidiary company had merely acted as an agent of its parent company. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=525&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 14 September 2007 Case number 9 Sch 02/07 Applicable NYC Provisions VII | V | IV | III | V(1)(d) | V(1)(c) | V(2)(b) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe
Languages English Summary The Applicant sought enforcement of an award rendered in Taiwan before the Oberlandesgericht (Higher Regional Court) Karlsruhe. The Respondent opposed enforcement arguing that the award creditor had failed to submit a certified copy and a translation of the award, and that the dispute was not covered by the arbitration agreement. It further contended that the tribunal had not been properly constituted because the nomination of a substitute arbitrator should have been made by the Taiwanese courts rather than the Arbitration Association of the Republic of China in Taiwan. In addition, the Respondent argued that the appointment of three Taiwanese arbitrators violated public policy. The Oberlandesgericht declared the award enforceable finding that it was sufficient that the Applicant had submitted a certified copy of the arbitration award. It stated that an original or a certified copy of the arbitration agreement [sic] and a translation were not required under German law, which was applicable instead of Article IV NYC, pursuant to the more-favorable-right provision at Article VII(1) NYC. The Oberlandesgericht concluded that the application for declaration of enforceability had merit (Article III), since the Respondent was in any event precluded from raising its non-enforcement grounds at this stage since it had an opportunity to raise arguments during the annulment proceedings in Taiwan, but had failed to do so. In this respect, the Oberlandesgericht also noted that it was long accepted in German case law that objections to enforcement could be considered in enforcement proceedings only if a permissible and relevant annulment application was not yet time-barred at the seat of the arbitration. Additionally, the Oberlandesgericht found that although Article V NYC did not contain a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement pursuant to Article VII NYC. Moreover, it found that since Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to domestic annulment proceedings, foreign preclusion rules should equally be given effect to ensure legal certainty. The Oberlandesgericht held that, in any case, the objections to the enforcement application were without merit. It found the arbitral tribunal’s broad interpretation of the arbitration clause convincing, and held that the dispute was covered by the arbitration clause (Article V(1)(c) NYC). In addition, the Oberlandesgericht held that any errors in the constitution of the arbitral tribunal could not justify a refusal of enforcement under Article V(1)(d) NYC, reasoning that even if one assumed that the substitute appointment should have been made by the Taiwanese courts, the Respondent would have to substantiate the extent to which the appointment by the state courts would have led to a different procedural outcome and, in particular, to the appointment of an arbitrator of a different nationality. Finally, the Oberlandesgericht found that the mere fact that the nationality of all three arbitrators was the same as one of the parties did not per se, and without any further concrete evidence, constitute a violation of the principle of neutrality such as to justify a refusal of enforcement based on Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1310&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 03 July 2006 Case number 9 Sch 1/06 Applicable NYC Provisions V | VII | V(1)(b) | V(2)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Respondent sought correction of an award rendered by an arbitral tribunal seated in Geneva, constituted under the Rules of the International Chamber of Commerce (ICC), on the grounds that the tribunal had failed to order simultaneous and reciprocal counter-performance (“Erfüllung Zug um Zug”) by the Claimant. After the tribunal dismissed the Respondent´s request, the Claimant sought enforcement of the award in Germany. The Respondent opposed enforcement arguing that (i) even though it had not sought annulment at the seat of the arbitration, it was not precluded from raising objections based on a violation of public policy (ii) it had claims for set-off against the Claimant (iii) certain gaps in the operative provisions of the award needed to be filled at the enforcement stage and (iv) its right to be heard had been violated because the tribunal had not taken certain arguments into account and had failed to hear some of the Respondent’s witnesses. The Oberlandesgericht (Higher Regional Court) Karlsruhe granted enforcement, holding that due to the Respondent’s failure to challenge the award at the seat of the arbitration within the time limits, it could not oppose enforcement of the award at this point, even based on the grounds for refusal of enforcement in Articles V(1)(b) and V(2)(a) NYC, the grounds of seeking a correction of the award, or for the set-off of its claims. It stated that it was established case law that the grounds for refusal of enforcement could only be considered in enforcement proceedings if an admissible and relevant annulment action was not time-barred at the foreign arbitral seat and noted that, in the present case, the application for annulment at the Swiss seat had become time-barred. According to the Oberlandesgericht, a permissive approach to the refusal of enforcement grounds in Article V NYC was not precluded by the NYC as an international treaty or as part of the domestic law. The Oberlandesgericht concluded that under Article VII(1) NYC, domestic court practice that was more favorable to the recognition and enforcement of awards had precedence over the procedures in the NYC. It further noted that, in relation to domestic awards, the revised German Civil Procedure Code expressly barred the enforcement court from considering non-enforcement grounds, which an applicant failed to raise within the relevant time limits in an annulment action. According to the Oberlandesgericht, to give effect to legal certainty, the same approach should be applied with respect to foreign arbitral awards, even though the German Civil Procedure Code did not expressly say so. The Oberlandesgericht also rejected the Respondent’s requested correction of the operative parts of the award, finding that German courts were not empowered to make substantive additions to arbitral awards. Finally, the Oberlandesgericht also rejected the Respondent’s set-off claims holding that these claims were covered by the parties’ arbitration clause and hence could not be decided by a state court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1322&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 27 March 2006 Case number 9 Sch 02/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(b) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Applicant applied to the Oberlandesgericht (Higher Regional Court) Karlsruhe for recognition and enforcement of an arbitral award rendered in its favour by an arbitral tribunal in Ukraine under the arbitration rules of the International Commercial Arbitration Court (“ICAC”) of the Ukrainian Chamber of Commerce and Industry. The Respondent opposed the enforcement application contending that (i) it had not received the arbitral award on March 1, 2005 as alleged by the Applicant, (ii) the arbitral tribunal had violated due process by refusing to grant the Respondent’s request for postponement of the oral hearing, and (iii) the arbitral award was entirely arbitrary. The Oberlandesgericht declared the award enforceable, holding that the Respondent was precluded from raising objections to enforcement at this stage since it had failed to challenge the award on those grounds at the seat of the arbitration within the applicable time limits. The Oberlandesgericht noted that it was long accepted in German case law that objections to enforcement could only be considered in enforcement proceedings if an admissible annulment application was not yet time-barred at the seat of the arbitration. According to the Oberlandesgericht, the applicable time limit had lapsed even if the Respondent had not received the arbitration award on March 1, 2005, as it would have received the award in June 2005 at the latest. The Oberlandesgericht further noted that although Article V NYC did not contain such a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement in accordance with Article VII NYC. Moreover, the Oberlandesgericht noted that Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to missed domestic annulment proceedings and that foreign preclusion rules should equally be given effect to ensure legal certainty in relation to arbitration awards. The Oberlandesgericht held that, in any case, the enforcement application was without merit. The Oberlandesgericht found that the Respondent’s right to be heard (Article V(1)(b) NYC) had not been violated by the tribunal’s refusal to postpone the oral hearing, adding that the Respondent could have sent a suitable representative and that a further postponement of the hearing date would have resulted in a disregard of the Applicant’s interest in legal protection. The Oberlandesgericht further held that the Respondent’s allegation as to the arbitrariness of the award was baseless and therefore there had been no violation of public policy under Article V(2)(b) NYC. The Oberlandesgericht noted that a public policy violation could be assumed only when the arbitral tribunal’s reasoning could no longer be followed and that a review of the content of the award on the merits was not permissible. Finally, the Oberlandesgericht held that it could decide on the application for the declaration of enforceability without conducting an oral hearing due to the fact that the grounds raised by the Respondent for denying enforcement had been precluded and its further allegations had not been sufficiently substantiated. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1314&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 13 March 1973 Case number 8 U 129/72 Applicable NYC Provisions V | II | V(1)(a) | II(3) Summary A German company and a Dutch company concluded a contract containing a clause calling for the resolution of disputes that could not be amicably settled by an arbitral tribunal of the German-Dutch Chamber of Commerce. The clause specified that if the decision was not acceptable to either Party, an ordinary court of law, to be designated by the Claimant, would be competent. The German Party brought an action before the Landgericht (Regional Court) Heidelberg, which held the Dutch party (who did not appear during the proceedings) liable. The Dutch party took recourse before the same Court arguing that the dispute should first have been submitted to arbitration. The Oberlandesgericht Karlsruhe (Higher Regional Court) confirmed the decision of the Landgericht which denied the stay of proceedings. The Landgericht had considered that under Article V(1)(a) NYC, the Parties have the freedom to choose the law applicable to the arbitration agreement and, absent any indication of applicable law by the Parties, the law of the country in which the award "will be made" applies. In the present case, the Parties did not designate any law, nor could the law of the country in which the award was to be made be determined because the they had not provided for a place of arbitration. Pursuant to the Rules of the German-Dutch Chamber of Commerce, the arbitration could take place either in Germany or in the Netherlands to the effect that either German or Dutch law would be applicable. Thus, the Court concluded that the validity had to be assessed under both legal systems. The Court held that under both German and Dutch law an arbitration agreement is valid only if it is in accordance with the will of the parties to have the arbitral tribunal decide their dispute in lieu of a state court. According to the Court, the same idea that an arbitration agreement is valid only if it excludes ordinary court proceedings underlies Article II(3) NYC. As a result, since the present clause made it possible to commence a court action, there was no valid arbitration agreement, but rather an agreement to attempt to conciliate. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=198&opac_view=6 Attachment (1)
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