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Bulgaria / 17 July 2013 / Bulgaria, Софийски градски съд (Sofia City Court) / Commercial Case No. 8920/2012
Country Bulgaria Court Bulgaria, Софийски градски съд (Sofia City Court) Date 17 July 2013 Case number Commercial Case No. 8920/2012 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(a) | IV(2) | V | V(1) | V(1)(b) | V(2) Source https://legalacts.justice.bg (database of Bulgarian judicial acts)
Languages Bulgarian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5192&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Πάφου (District Court of Paphos) Date 22 March 2013 Parties OOO Syntez v. Systcom Ltd Case number General Application No. 2/10 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6689&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 22 March 2013 Parties A v. B Case number C/11886/2011 Applicable NYC Provisions IV | IV(2) | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3687&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 02 July 2012 Case number 5A_754/2011 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(2) | V(2)(b) | VII | VII(1) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The parties entered into an exclusive distribution and licensing agreement, which provided for arbitration under the Rules of the International Chamber of Commerce (“ICC”) by a sole arbitrator in London. A dispute arose and the licensor initiated arbitration proceedings. The sole arbitrator rendered an award prohibiting the licensee from further using certain trademarks belonging to the licensor, while at the same time ordering the licensor to make certain payments to the licensee, including payments for its arbitration costs. The licensee sought leave to enforce its award from the Bezirksgericht (Regional Court) Höfe, which essentially granted the request. The licensor appealed, unsuccessfully, to the Kantonsgericht Schyz (Cantonal Court) Schwyz, and subsequently to the Bundesgericht (Swiss Federal Tribunal). The licensor contented that the licensee’s submission of only a partial translation of the English arbitral award into German violated Article IV(2) NYC, which, it argued, mandatorily required the submission of a German translation of the full text of the arbitral award which was sought to be enforced, regardless of whether the court was capable of understanding the award in the English. It also argued that recognition and enforcement of the award would violate Swiss public policy under Article V(2)(b) NYC since the arbitral award ordered it to bear the full costs of the arbitration. The Bundesgericht dismissed the licensor’s appeal, upholding the decision granting leave to enforce the award. The Bundesgericht stated that there were differing views on the interpretation of Article IV(1) NYC both in academia and in court practice, and found that under Articles 31-33 of the Vienna Convention on the Law of Treaties the provision needed to be interpreted with a view to good faith, in conformity with its common meaning and in the light of its object and purpose. The Bundesgericht stated that the purpose of the NYC was to facilitate the recognition and enforcement of foreign arbitral awards, which required the enforcement-friendly interpretation of its norms. Moreover, the Bundesgericht found that Article IV(2) NYC served the function of enabling the enforcement court to evaluate possible grounds to refuse enforcement under Article V NYC based on a version of the arbitral award in a language that it could understand. The Bundesgericht further recalled that its prior case law indicated that form requirements under Article IV NYC were not to be applied restrictively. It concluded that it would be purely formalistic to require a full translation of the award in the present case, given that the licensee had provided a translation of the award’s dispositive section and of the section on costs that was disputed between the parties and which could have formed the basis of a possible defense under Article V NYC. In addition, the Bundesgericht found that Swiss courts nowadays normally do not depend on a translation in the case of English-language arbitral awards, so that the non-provision of a full translation did not endanger the purpose of Article IV(2) NYC. The Bundesgericht thus concluded that based on a flexible, pragmatic and non-formalistic interpretation of Article IV(2) NYC, the provision of only a partial translation of the arbitral award was sufficient, and that a more restrictive interpretation would run counter to the recognition and enforcement friendly spirit and objective of the NYC. The Bundesgericht also noted that the licensor had not claimed that it required a translation of the full award to safeguard its own legal rights. It also held that since it had interpreted Article IV(2) NYC as not requiring a translation of the entire award, it did not need to decide whether the same result could have been reached by application of more lenient requirements under Swiss domestic law in accordance with Article VII(1) NYC. As regards the licensor’s argument that the recognition and enforcement of the award would violate Swiss public policy, the Bundesgericht held that it did not need to address this defense since the licensor had in this regard simply resubmitted the same arguments that it had previously submitted to the Kantonsgericht, without addressing the Kantonsgericht’s reasoning for why the enforcement of the cost award did not violate Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1427&opac_view=6 Attachment (2)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 30 May 2012 Parties IMFC Licensing B.V. v. R.C.D. Espanyol de Barcelona S.A.D. Case number ATSJ CAT 272/2012 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(1)(c) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3989&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Λευκωσίας (District Court of Nicosia) Date 02 May 2012 Parties Kismetia Ltd v. Lupusco Volga Farming Ltd and Gunnar Nilsson Case number Application No. 1639/11 Applicable NYC Provisions IV | IV(2) | V Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6700&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 29 March 2012 Parties Ms Amazon River I CV v. Eurocondal Shipping S.A. Case number ATSJ CAT 103/2012 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3993&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 15 March 2012 Parties Starlio Shipping Company Limited v. Eurocondal Shipping S.A. Case number ATSJ CAT 100/2012 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3994&opac_view=6 Attachment (1)
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Country Albania Court Albania, Kolegjet e Bashkuara të Gjykatës së Lartë (Grand Chamber of the Supreme Court) Date 01 June 2011 Parties I.C.M.A. S.r.l and AGRI. BEN S.A. v. Ministria e Bujqësisë dhe Ushqimit Case number 6 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(b) | IV(2) | V | V(2) Source http://www.qbz.gov.al (website of the Official Gazette of the Republic of Albania)
Languages Albanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4740&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia) Date 09 January 2011 Parties Pusaka Laut PTE Ltd v. CDC Hiacre S.A. Case number ATSJ CAT 555/2011 Applicable NYC Provisions I | I(1) | II | II(1) | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4004&opac_view=6 Attachment (1)
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Country Albania Court Albania, Gjykata e Apelit Tirane (Court of Appeal of Tirana) Date 14 December 2010 Parties Rohde Nielsen A/S v. Ministry of Transport Applicable NYC Provisions I | II | III | IV | IV(2) | V | V(1) | V(2) Source http://www.gjykata.gov.al (website of the Courts of the Republic of Albania)
Languages Albanian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5727&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 December 2010 Case number 14.2010.98 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy and was declared enforceable in Italy by the Tribunale Ordinario. Y initiated an action before the Corte d’Appello (Court of Appeal) to have the award set aside. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from an Ufficio d’esecuzione. Y raised an objection (opposizione) against the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the award had not yet become binding on the parties because the action to set aside the award was still pending in Italy. The Pretore dismissed Y’s objection, holding that the Corte d’Appello in Italy had not suspended the enforceability of the award. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal), dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that X had complied with the provisions of Article IV(1) NYC by providing the original arbitration agreement and a certified copy of the award. It also noted that Article V(1)(e) did not require that the award be declared enforceable in the country in which it was made in order to be recognized and enforced abroad, unless such was required by the law of the country where it was rendered. The Tribunale d’Appello found that Italian law did not set such a requirement and that thus the award had become binding on the parties. It also observed that the Corte d’Appello in Italy had not suspended the enforceability of the award pursuant to Article VI NYC. Finally, the Tribunale d’Appello held that the award complied with the provisions of Articles V(2)(a) and V(2)(b) NYC, in that the subject matter of the dispute was capable of settlement by arbitration under Swiss law and that recognition and enforcement would not be contrary to Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1292&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 25 February 2010 Parties Fédération française d'études et de sports sous-marins (FFESSM) v. Société Cutner & Associates P.C. Case number 08/22780 Applicable NYC Provisions IV | IV(2) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary The President and General Secretary of a French Federation (FFESSM) entered into an agreement with an American law firm (CUTNER & Associates) for legal representation in a litigation brought by a French Association (Equipe Cousteau) before the Courts of New York. A dispute arose as to counsel's fees. Pursuant to the arbitration agreement contained in the contract, the American law firm filed a claim against the French Federation before the American Arbitration Association. In an award dated 26 June 2007, the arbitral tribunal ruled in favor of the American law firm and awarded damages. In an order issued on 1 September 2008, the President of the Tribunal de grande instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, FFESSM and its President and General Secretary argued that the Tribunal de Grande Instance de Paris lacked jurisdiction to grant the enforcement of the award. In this respect, they argued that they did not receive a proper notice of the procedural acts, which were not translated into French, contrary to the requirement of Article IV(2) NYC, and that enforcement should be denied pursuant to Article 1502 2° and 1502 4° of the Code of Civil Procedure. Lastly, they claimed that only FFESSM is a party to the contract and therefore the arbitral tribunal had been deceived in holding FFESSM's representatives liable in their own name. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement of the award. It ruled that, in accordance with the Code of Civil Procedure, the Tribunal de Grande Instance de Paris has jurisdiction to allow enforcement of international awards or awards rendered abroad and rejected the fraud allegations which pertained to the merits of the award and were therefore not open to review by the annulment judge. As to the enforcement of the award, the Cour d'appel de Paris held that the arbitral tribunal acted in accordance with the procedure agreed upon between the parties (by referring to the provisions of the Rules of the American Arbitration Association pertaining to procedural acts and the language of the arbitration) and that therefore proper notice was provided to both parties. It then rejected FFESSM's argument based on Article IV NYC by recalling that this provision only deals with the translation requirements for enforcement of awards (i.e. the award has to be translated in the official language of the country in which the award is relied upon). Consequently, it ruled that the fact that the procedural acts in the arbitration were not translated in the language of the country in which the award is sought to be enforced did not constitute a breach of Article IV NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=187&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 22 February 2010 Case number 14.2009.104 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The parties, X and Y, entered into a remission agreement (accordo di remissione), which referred to a collection agreement (accordo di riscossione) to which Y was not a party. A dispute arose and following arbitration proceedings in the United States under the American Arbitration Association, an award was rendered against Y. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y’s assets. Y raised an objection against the payment order (opposizione) and X sought dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that (i) it had not consented to arbitration, (ii) it had not been given proper notice of the arbitration proceedings, and (iii) an action to have the award set aside was pending before the courts of California. The Pretore granted Y’s objection, holding that the remission agreement upon which X relied did not contain an arbitration clause, but only referred to the collection agreement for arbitration, to which Y was not a party. X appealed, arguing that the arbitration clause had been reproduced in its entirety in the remission agreement and that as the courts of California had not suspended the enforceability of the award, it was binding upon the parties. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) overturned the decision of the Pretore, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law Act, the NYC is applicable to the enforcement and recognition of foreign awards. In this regard, it held that X had complied with the provisions of Article IV(1) and IV(2) NYC by providing certified copies and translations of both the arbitration agreement and award. It then found that the award complied with Article V(1)(a) NYC because the arbitration clause in the collection agreement, to which Y was not party, had been reproduced in the remission agreement signed by Y. The Tribunale d’appello also ruled that Y had been able to present its case and had received proper notice of the arbitration proceedings in accordance with Article V(1)(b) NYC. It held further that the courts of California had not suspended the enforceability of the award pursuant to Article VI NYC, thus the award had become binding on the parties in accordance with Article V(1)(e) NYC. Finally, the Tribunale d’Appello rejected Y’s claim that the award violated Swiss public policy, reasoning that as Y had been able to present its case in accordance with Article V(1)(b) NYC, the award was not contrary to the provisions of Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1293&opac_view=6 Attachment (1)
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Country Argentina Court Argentina, Cámara Federal de Apelaciones de Mar del Plata (Federal Court of Appeals of Mar del Plata) Date 04 December 2009 Parties Far Eastern Shipping Company v. Arhenpez S.A. Case number 9.716 Applicable NYC Provisions I | I(1) | III | IV | IV(1) | IV(2) | V Source www.pjn.gov.ar (website of the Poder Judicial de la Nación)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4574&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 27 November 2008 Parties Société GFI Informatique v. Société Engineering Ingegneria Informatica and Société Engineering Sanità Enti Locali (ex GFI Sanità) Case number 07/11672 Applicable NYC Provisions IV | IV(2) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 27 June 2001, a French company (GFI Informatique) entered into a joint venture agreement with two Italian companies (Engineering Ingegneria Informatica - EII - and Engineering Sanita' Enti Locali - ESE). A dispute arose as to the performance of the agreement and EII and ESE filed a Request for arbitration before the Camera Arbitrale di Milano, pursuant to the arbitration clause contained in the joint-venture agreement. In an award dated 23 March 2007, the arbitral tribunal ruled in favor of EII. A corrective award was rendered on 29 March 2007. Enforcement of the award was granted on 16 May 2007 by the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris). GFI appealed this decision by arguing that the arbitrators ruled without complying with their mandate and that the award was contrary to international public policy (Articles 1502 3° and 1502 5° of the Code of Civil Procedure). With respect to the first ground, GFI argued that the arbitral tribunal did not take into account all of the submissions filed by the parties, and that EII did not provide the Tribunal de grande instance de Paris with a certified translation of the award by a sworn translator in the list of the said tribunal, which is contrary to the NYC. GFI also claimed that the arbitrators did not discuss the decision amongst themselves, which is contrary to international public policy. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order. It found that the arbitral tribunal had complied with its mandate since only an omission to answer to a specific claim constitutes a ground for non-enforcement under Article 1502 3° of the Code of Civil Procedure, which was not the case here. As regards the translation of the award, it ruled that the fact the award was not translated by an expert registered among the list of French judicial experts did not constitute a ground for non-enforcement. It added that neither the NYC, nor Article 1499 of the Code of Civil Procedure, required a sworn translation of the award to be given by a translator from the country where enforcement is sought. Lastly, the Cour d'appel de Paris rejected the argument based on a violation of international public policy by holding that the arbitrators had discussed their position and that the President had taken into account the comments provided by the other arbitrators. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=185&opac_view=6 Attachment (1)
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Country Morocco Court Morocco, Commercial Court of Appeal of Casablanca Date 26 August 2008 Parties Scientific Production Company for Commerce Natane v. Rony Brice’s Company Case number 1795-2008-4 Applicable NYC Provisions II | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(e) Source Registry of the Court
Languages Arabic Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6612&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 23 October 2007 Parties K**** v. F**** AG Case number 3Ob141/07t Applicable NYC Provisions II | IV | IV(1) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3882&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Λάρνακας (District Court of Larnaca) Date 19 October 2007 Parties Bristol Business Corporation v. Besuno Limited Case number Application No. 1/07 Applicable NYC Provisions II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6669&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 31 May 2007 Case number 8 Sch 06/06 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | IV(2) | IV(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Celle.
Languages English Summary The Parties – a German Licensee and a Finnish Licensor – concluded a License Agreement which provided for arbitration in Finland. The Licensee terminated the agreement and filed claims against the Licensor before the Landgericht (Regional Court) Hamburg. The Landgericht declined jurisdiction on the ground that the License Agreement contained an arbitration clause. The Licensee subsequently initiated arbitration proceedings in Finland. The arbitral tribunal dismissed the Licensee’s claims and granted the Licensor’s counterclaims. The Licensor sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Celle. The Licensee objected to the enforcement arguing, inter alia, that the parties’ business relationship was merely based on an implicit oral agreement and that the License Agreement, including the arbitration clause, existed only in draft form so that the Licensor was incapable of providing the original arbitration agreement as required under Article IV(1)(b) NYC. In addition, the Licensee alleged that the sole arbitrator had been biased because he was a member of an association to which a shareholder of the Licensor belonged. According to the Licensee, the arbitrator’s bias were evidenced by the fact that the award one-sidedly favoured the Licensee and disregarded the Licensee’s substantive arguments and its applications for the submission of evidence. The Licensee also alleged various irregularities regarding the arbitration proceedings. The Oberlandesgericht rejected the Licensee’s claims and declared most of the award to be enforceable. It first stated that the formal requirements for recognition of arbitral awards set out in Articles IV(1)(a) and IV(2) NYC had been met. It concluded that as the Licensor had submitted the original award and its translation, under German law, which was applicable by virtue of the more-favorable-right provision at Article VII NYC, it was not necessary for an applicant to submit the arbitration agreement (Section 1064(1) of the German Civil Procedure Code). The Oberlandesgericht also found that the substantive requirements for granting enforcement had been met, since none of the grounds for denying enforcement under Article V NYC were applicable. With reference to Article V(1)(a) NYC, the Oberlandesgericht noted that it did not need to decide whether the arbitration clause contained in the “License Agreement” was valid or not since the Landgericht’s earlier decision confirming the validity of the arbitration agreement had a res judicata effect. Moreover, given that the Licensee had initiated arbitration proceedings on the basis of the same arbitration agreement, it was now precluded from asserting that the arbitration agreement was invalid. Furthermore, the Oberlandesgericht rejected the Licensee’s argument that its right to be heard had been violated by the arbitrator, finding that the parties had been given a full opportunity to present their case, and that the right to be heard, as provided in Article V(1)(b) NYC, did not protect a party against an arbitral tribunal’s decision to disregard evidence applications by the parties based on formal or substantive reasons. The Oberlandesgericht also rejected the Licensee’s arguments regarding procedural irregularities under Article V(1)(d) NYC. Moreover, the Oberlandesgericht also rejected the Licensee’s arguments regarding a violation of German public policy under Article V(2)(b) NYC holding, first, that there was no evidence that the sole arbitrator’s membership in the association to which the Licensor happened to belong had affected the sole arbitrator’s impartiality and, second, that the findings in the award also did not violate German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1308&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 14 December 2006 Case number 8 Sch 14/05 Applicable NYC Provisions VII | V | IV | II | V(1)(b) | VII(1) | V(1)(a) | IV(2) | V(1)(d) | IV(1)(a) | II(2) | II(1) Source Original decision obtained from the registry of the Oberlandesgericht Celle
Languages English Summary A ship-owner and a charterer negotiated two charter-parties but signed only one. The charter-parties referred to the arbitration clause contained in the GENCON 1994 charter-party template, which provided for arbitration in London. Subsequently, the ship-owner initiated arbitration, claiming a breach of the unsigned charter-party, and obtained a favorable award. The ship-owner applied for enforcement before the Oberlandesgericht (Higher Regional Court) Celle, which was opposed by the charterer, who also sought annulment of the award by the Oberlandesgericht on the grounds that (i) the charter-party was not enforceable, (ii) that the parties had not concluded a valid arbitration agreement and therefore the arbitrator did not have jurisdiction, (iii) that the arbitration had not been conducted in accordance with English law, which, it argued, permitted an arbitrator to assume jurisdiction only when the existence of an arbitration agreement was undisputed between the parties - which it was not - and that the arbitrator’s decision nevertheless to assume jurisdiction violated German public policy, and (iv) that it had not received a request to nominate an arbitrator and had not yet received a copy of the award. The ship-owner replied saying that (i) the arbitrator had held that the unsigned charter-party, and thus the arbitration agreement, had been validly concluded, (ii) that the charterer had not raised any concerns as to the existence of the arbitration agreement during the arbitral proceedings and could not do so now, and (iii) that the arbitration proceedings did not violate any fundamental legal principles of the Federal Republic of Germany. The Oberlandesgericht declared the award enforceable and denied the request for annulment, reasoning that the award had been rendered in England and could therefore only be annulled in England. The Oberlandesgericht found that the ship-owner had fulfilled the requirements for enforcement under Article III NYC as it had supplied a certified copy of the award as per Article IV(1)(a) NYC and a certified translation of the same as per Article IV(2) NYC. The Oberlandesgericht found that pursuant to the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law (Section 1064 (1) and (3) of the German Civil Procedure Code) were applicable, rather than those in Article IV NYC, and German law did not require submission of the original arbitration agreement or a certified copy of the same. It further noted that according to Articles II(1), II(2) and V(1)(a) NYC a written arbitration agreement was required, but based on the more-favorable-right provision at Article VII(1) NYC the less stringent requirements of Section 1031 of the German Civil Procedure Code would apply, whereby “a written document signed by both parties was not mandatorily necessary”. The Oberlandesgericht concluded that the arbitration agreement contained in the annex of the unsigned charter-party met the formal requirements of a valid arbitration agreement. The Oberlandesgericht said that the factual or legal findings of the arbitrator regarding the validity of the arbitration agreement were not binding on it and that enforcement courts were required to make an independent assessment of whether the requirements of Articles II and V NYC had been met. The Oberlandesgericht found that Article V(1)(d) NYC only concerned defenses regarding the “composition of the arbitral authority” or the “arbitral procedure”, and that the question of the validity of the arbitration agreement was a preliminary question that fell under Article V(1)(a) NYC. It reasoned that there was therefore no basis for refusing enforcement under Article V(1)(d) based on the charterer’s argument that under English law arbitrators could only become active if the existence of an arbitration agreement was undisputed between the parties. The Oberlandesgericht found that the charterer’s allegation that they had not received a request to nominate the arbitrator was contradicted by the evidence and therefore Article V(1)(b) NYC was not applicable. It also held that the charterer had not shown that recognition and enforcement of the award would contradict German public policy and that the fact that it had not yet received a copy of the arbitral award did not constitute a violation of German public policy as it was well recognized that an arbitral award could be transmitted during proceedings for its annulment or enforcement. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. Domestic law more favourable than article II / §34
- 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=1316&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 10 August 2006 Case number 20 Sch 07/04 Applicable NYC Provisions VII | V | IV | III | V(1)(e) | V(2)(a) | VII(1) | V(1)(a) | IV(2) | IV(1)(b) Source Original decision obtained from the registry of the Kammergericht
Languages English Summary In relation to a joint venture contract for the exploration of Lithuanian oil fields, a tribunal constituted under the Rules of the International Chamber of Commerce (“ICC”), seated in Copenhagen, ordered the Respondents, a foreign state and a company incorporated under the laws of that state, to pay damages to the Applicant as joint and several debtors. The foreign state issued a resolution stating that it did not consider it appropriate to seek annulment of the award at the seat of the arbitration. The Applicant applied for enforcement of the award in Germany. The foreign state opposed enforcement before the Kammergericht (Higher Regional Court Berlin) arguing that (i) it was not a party to the arbitration agreement, (ii) the arbitration agreement did not encompass disputes regarding the oil fields, (iii) this was a dispute about natural resources which were in the public law domain and thus not susceptible to arbitration, and (iv) that it had not been fully granted the right to be heard. The foreign state further argued that its resolution did not constitute a waiver of the right to seek an annulment of the award and that the time limit for seeking annulment had not yet passed. In addition, it sought that the arbitral tribunal’s factual findings be fully reassessed by the Kammergericht. The Respondent company opposed enforcement of the award, stating that (i) the Applicant had not fulfilled the formal requirements for enforcement as it had not submitted a notarized translation of the arbitration agreement, (ii) that the application for enforcement would constitute an abuse of law as the Applicant was not willing to comply with the award issued for the counter claims raised by the Respondent company, and (iii) that the recognition and enforcement of the award would be contrary to German public policy. It further argued that it did not have any attachable assets in Germany due to which the Kammergericht did not have jurisdiction over it. The Kammergericht declared the award enforceable against the Respondent state but not the company. It found that the application met the formal requirements for a declaration of enforceability and that pursuant to Section 1064 paras 1 and 3 of the German Civil Procedure Code the Applicant need only provide a certified copy of the arbitral award. It held that while Articles IV(1)(b) and IV(2) NYC required submission of the original arbitration agreement or a certified copy, and a certified translation of the award, under the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law would be applicable. The Kammergericht noted that this interpretation was also in line with Article III NYC according to which the recognition of foreign awards could not be subject to substantially more onerous conditions than the recognition of domestic awards. On the merits, the Kammergericht concluded that the Respondent state was precluded from raising objections since it had previously, by way of its resolution, abstained from seeking annulment of the award at the arbitral seat, even though the award could only be set aside at the seat. According to the Kammergericht, for the Respondent state to object to enforcement now was in contradiction to its previous stance and against good faith. With respect to the Respondent company, the Kammergericht refused to declare the award enforceable, finding that the application was inadmissible since the company did not own assets in Germany. The Kammergericht concluded that its finding of inadmissibility was not barred under the NYC as it did not involve a decision on the merits of the dispute and the NYC did not address general admissibility requirements in addition to the specific requirements stipulated in the NYC. reversed by : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- 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=1318&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 April 2006 Parties D**** S.A. v. W**** GmbH Case number 3Ob211/05h Applicable NYC Provisions II | III | IV | IV(1) | IV(2) | V | V(1) | V(1)(d) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3884&opac_view=6 Attachment (1)
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Country Cyprus Court Cyprus, Επαρχιακό Δικαστήριο Αμμόχωστου (District Court of Ammochostos) Date 18 January 2006 Parties ΕΠΕ Τεχσναμπ (Techsnab Ltd.) v. CNS Energy Company Ltd Case number Application No. 5/05 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(b) | XII | XII(2) Source http://www.cylaw.org (CyLaw website)
Languages Greek, Modern (1453-) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6690&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 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 Korea Court Korea, Supreme Court of Korea Date 10 December 2004 Parties K&V International Emb. Co. Ltd. v. Sunstar Precision Co. Ltd. (formerly Korea Special Precision Co., Ltd.) Case number 2004Da20180 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(2) Source Languages Korean affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6419&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 July 2004 Parties Antilles Cement Corporation v. Transficem Case number ATS 9443/2004 Applicable NYC Provisions II | II(1) | III | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4025&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 18 March 2004 Parties Société Synergie v. Société SC Conect Case number 2001/18372, 2001/18379 & 2001/18382 Applicable NYC Provisions IV | IV(2) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary Three arbitral awards were rendered in Romania on 29 May 1998 following a dispute between a French company (Synergie) and a Romanian company (Conect). In three orders issued on 14 May 2001, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the awards in France. Appealing these decisions, Synergie objected, with respect to the request for enforcement, to the lack of translation of the award by an expert recorded on the list of experts of the court contrary to Article 1499 of the Code of Civil Procedure, and to the fact that incomplete awards had been notified to it. It argued further that (i) the arbitral tribunal ruled without complying with the mandate conferred to it (Article 1502 3° of the Code of Civil Procedure), (ii) due process was violated (Article 1502 4°) and (iii) the arbitral tribunal breached "provisions of international public policy" (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement orders and dismissed the appeal. It reasoned that the grounds for refusing enforcement of an award listed under Article 1502 of the Code of Civil Procedure are exhaustive and that therefore the fact that the award had not been translated by a French sworn translator (but by a Romanian expert) did not constitute a ground for refusing enforcement. It then held that Article IV NYC requires the party applying for recognition and enforcement of the award to produce a translation of the said award in an official language of the country in which the award is relied upon, certified by an official or sworn translator or by a diplomatic or consular agent, but does not provide that the translation be made by a sworn translator recorded on the list of experts of the court. Lastly, it noted that a full translation of the award had been produced during the proceedings. The Cour d'appel de Paris then dismissed the other grounds for refusing enforcement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=164&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 07 October 2003 Parties The Anthony Radcliffe Steamship Company Limited v. Hermanos Vila S.A. Case number ATS 10039/2003 Applicable NYC Provisions I | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(2)(a) | V(2)(b) Source Consejo General del Poder Judicial (Centro de Documentación Judicial – CENDOJ)
Languages Spanish Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4032&opac_view=6 Attachment (1)
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