Guide
|
Available documents (106)
Germany / 18 October 2007 / Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) / 26 Sch 1/ 07
Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 18 October 2007 Case number 26 Sch 1/ 07 Applicable NYC Provisions VII | V | IV | II | VII(1) | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | II(2) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt
Languages English Summary The parties entered into a sales contract that provided for arbitration in Italy pursuant to the arbitration rules of the Camera Arbitrale del Piemonte. A dispute arose and the Seller initiated arbitration proceedings, obtaining a favourable award which it sought to enforce in Germany before the Oberlandesgericht (Higher Regional Court) Frankfurt. The Buyer opposed the enforcement arguing (i) that the arbitration agreement was invalid since it had not been signed by the parties and did not fulfil the form requirements under Italian law, (ii) that its right to be heard had been violated since it had not been properly informed of the constitution of the arbitral tribunal nor duly invited to the oral hearing, (iii) that the tribunal had not been properly constituted, and (iv) that the enforcement was against German public policy since the Buyer had no legal remedies against the award rendered by a sole arbitrator whom it had not appointed. The sole arbitrator had decided ex aequo et bono, even though the arbitration clause did not empower him to do so, the Buyer had not been duly invited to the oral hearing, and the sole arbitrator had violated its right to be heard since he failed to take into account the Respondent’s notice of defects (“Maengelruege”) regarding one of the objects of the sale. The Oberlandesgericht granted enforcement, rejecting all of the Respondent’s arguments. It clarified that the formal requirements under Article IV NYC had been fulfilled, even though the Seller had not provided a duly authenticated original of the arbitration award. The Oberlandesgericht considered that pursuant to Article VII NYC, it was sufficient that the relevant documents fulfilled the less stringent requirements under the applicable German law. It held that these requirements had been met as the Seller had provided the original arbitration award and arbitration agreement. The Oberlandesgericht concluded that the arbitration agreement was valid and enforcement could not be rejected under Article V(1)(a). It considered that it was sufficient that the parties had signed the general terms and conditions containing the arbitration clause. It also held that the invalidity of the arbitration agreement could not be based on form requirements under Italian law, which were more restrictive than the requirements under Article I NYC. It noted that according to Article VII NYC, a court could apply domestic form requirements only if they were less stringent than the form requirements under Article II NYC. The Oberlandesgericht considered that the Buyer was in any event precluded from questioning the validity of the arbitration agreement since it could have done so during the arbitration proceedings but did not. Moreover, the Oberlandesgericht found that there was no basis for rejecting enforcement on the grounds of a violation of the right to be heard under Article V(1)(b) NYC, as the alleged failure to properly inform the Buyer of the constitution of the arbitral tribunal was not relevant because the Buyer had failed to show that it would have raised any additional defences had it been properly informed of such constitution. It followed the same reasoning in relation to the alleged failure to duly summon the Buyer to the oral hearing. The Oberlandesgericht held that under Article V(1)(b) NYC, violations of the right to be heard would only form the basis for rejecting enforcement if such violations had in fact prevented the affected party from raising its claims and defences. The Oberlandesgericht concluded that in this case the Buyer knew of the arbitration proceedings and could thus have raised its defences, but failed to do so. The Oberlandesgericht further stated that even though the arbitral tribunal had not been properly constituted in accordance with the agreement of the parties, this would not justify a refusal of enforcement under Article V(1)(d) NYC because the Buyer should previously have raised the objection in annulment proceedings at the seat of the arbitration, but had failed to do so within the relevant time limit. The Oberlandesgericht noted that the preclusion of a defence under the law of the seat of the arbitration would have to be recognized by an enforcement court in the interest of legal harmony, and it would be unreasonable to preclude a party’s defences against an award only at the arbitral seat but allow them in other contracting states to the NYC. Finally, the Oberlandesgericht found that enforcement could not be denied under Article V(2)(b) NYC based on the various alleged violations of German public policy. The Oberlandesgericht stated it was not a violation of German public policy that there were no legal remedies against the decision of the sole arbitrator noting that arbitration awards were generally not subject to appeal. The Oberlandesgericht further found that, in the present case, the Buyer’s non-participation in the constitution of the arbitral tribunal was acceptable under the rules of arbitration of the Camera Arbitrale, and that the sole arbitrator was empowered under the applicable rules to decide ex aequo et bono. It noted that, in any event, the arbitrator had also based his decision on the United Nations Convention on the International Sale of Goods. The Oberlandesgericht further stated that the Buyer’s defence that it had not been duly invited to the oral hearing was precluded also in the public policy context, since the Buyer could have raised the defence in the annulment proceedings at the seat of the arbitration but failed to do so. Finally, regarding the Buyer’s argument that its right to be heard had been violated because the sole arbitrator had failed to consider its notice of defects (“Maengelruege”) regarding one of the objects of the sale, the Oberlandesgericht held that the argument should be disregarded as it would require a review of the merits of the dispute which was prohibited under Article V NYC. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. Estoppel and waiver / §52
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §33
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1302&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 14 September 2007 / Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) / 9 Sch 02/07
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)
Original LanguageAdobe Acrobat PDFFrance / 29 June 2007 / France, Cour de cassation / Société PT Putrabali Adyamulia v. Société Rena Holding et Société Moguntia Est Epices / 05-18.053
Country France Court France, Cour de cassation (French Court of Cassation) Date 29 June 2007 Parties Société PT Putrabali Adyamulia v. Société Rena Holding et Société Moguntia Est Epices Case number 05-18.053 Applicable NYC Provisions VII | VII(1) Source Bulletin 2007, I, N° 250, Original decision obtained from the registry of the Cour de cassation
Summary An Indonesian company (Putrabali) sold a cargo of white pepper to a French company (Est Epices, which later became Rena Holding). The contract provided for arbitration according to the Rules of Arbitration and Appeal of the International General Produce Association (IGPA). A dispute arose when the cargo was lost in a shipwreck. The Indonesian company commenced arbitration in London in accordance with the IGPA Rules. In an award dated 10 April 2001, the arbitral tribunal held that Rena Holding's refusal to pay was "well-founded". Putrabali challenged the award on a point of law before the High Court on the basis of the Arbitration Act 1996 for England and Wales, which partially set aside the award and held that the Rena Holding's failure to pay for the cargo amounted to a breach of contract. In a second award dated 21 August 2003, the arbitral tribunal ruled in favor of Putrabali and ordered Rena Holding to pay the contract price. An enforcement order was issued by the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowing recognition and enforcement of the 2001 award in France. Putrabali challenged the decision of the Cour d'appel de Paris (Paris Court of Appeal) of 31 March 2005 which dismissed the appeal against the enforcement order, on the grounds that, inter alia, the setting aside of an arbitral award in a foreign country does not prevent the interested party from seeking enforcement of the award in France. Further, the Cour d'appel de Paris held that the enforcement of the 2001 award would not be contrary to international public policy. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris. It reasoned that an international arbitral award, which is not anchored in any national legal order, is a decision of international justice whose validity must be ascertained with regard to the rules applicable in the country where its recognition and enforcement are sought. Pursuant to Article VII NYC, it held that Rena Holding was allowed to seek enforcement in France of the 2001 award rendered in London in accordance with the arbitration agreement and the IGPA rules and could avail itself of the French rules on international arbitration, which do not list the setting aside of an award in the country of origin as a ground for refusing the recognition and enforcement of that award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=176&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 23 February 2007 / Germany, Oberlandesgericht München (Higher Regional Court of Munich) / 34 Sch 31/06
Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 23 February 2007 Case number 34 Sch 31/06 Applicable NYC Provisions VII | V | IV | V(2)(a) | V(1)(e) | V(2)(b) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München.
Languages English Summary The parties – three Austrian companies – entered into a contract under which one of the parties (the Applicant) was to provide certain film production services to the other two parties (the Respondents). A dispute arose regarding payment under the contract and was resolved in favour of the Applicant following an arbitration conducted in Austria under the Rules of the International Chamber of Commerce (“ICC”). The Applicant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) München. The Respondents requested that the Oberlandesgericht stay the enforcement proceedings until the competent court in Austria came to a decision on their application for annulment. The Oberlandesgericht declared the award enforceable and denied the Respondents’ request for suspension of the proceedings. The Oberlandesgericht found that the formal requirements for the issuance of a declaration of enforceability had been fulfilled. Pursuant to the more-favorable-right provision at Article VII(1) NYC, it held that the less stringent requirements of German law were applicable instead of those in Article IV NYC, and that under Section 1064(1) of the German Code of Civil Procedure, the Applicant need only provide an original or a certified copy of the arbitral award, which it had provided. Moreover, in response to one of the grounds raised by the Respondent, the Oberlandesgericht stated that it saw no reason to refuse enforcement under Article V NYC. The Oberlandesgericht also ruled that the subject matter of the dispute, i.e., the obligation of the Respondents to pay for the Applicant’s services, was arbitrable (Article V(2)(a) NYC) and that the recognition and enforcement of the award did not contradict German public policy under Article V(2)(b) NYC, as there was no indication that the arbitration proceedings had violated fundamental principles of German procedural law, or that there had been any other public policy violation. It further concluded that the Respondents’ allegation that the decision was wrong on the merits was not a defence that could be raised in enforcement proceedings. Moreover, the Oberlandesgericht held that under Article V(1)(e) NYC, the possibility of having the award annulled under the law of the seat did not hinder the enforcement of the arbitral award. Lastly, the Oberlandesgericht stated that there was no bar to enforcement in respect of a decision on costs in which the tribunal had ordered the Respondents to bear all of the fees of the arbitral tribunal. The Oberlandesgericht held that this was not an impermissible decision by the arbitral tribunal on its own interests, which could have been refused recognition under Article V(2)(b) NYC, reasoning that the tribunal only decided on the allocation of the costs between the parties and that the uncontested costs of the arbitral tribunal were fully covered by the parties’ advance on costs. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §14
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1309&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFFrance / 18 January 2007 / France, Cour d'appel de Paris / Société Lesbats et Fils v. M. Volker le docteur Grub / 05/10887
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 18 January 2007 Parties Société Lesbats et Fils v. M. Volker le docteur Grub Case number 05/10887 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An ICC award was rendered in Brussels on 23 July 2004 in favor of a German company. In an order issued on 7 March 2005, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. The award was then set aside by the Tribunal de Première Instance de Bruxelles (Brussels First Instance Court) on 16 November 2006, which ruled that the arbitral tribunal wrongly upheld jurisdiction without an arbitration agreement. Appealing the enforcement order, the opposing side argued that the recognition and enforcement in France of an award which was set aside in its country of origin would be contrary to Articles 1498 and 1502 of the Code of Civil Procedure and to the NYC. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order. It reasoned that Article VII NYC provides for the application of domestic law which is more favorable to the enforcement of awards, in this case Article 1502 of the Code of Civil Procedure. According to Article 1502 of the Code of Civil Procedure, the setting aside of the award in the country of origin is not a ground for refusing enforcement. The Cour d'appel de Paris added that the rule according to which the setting aside of an arbitral award in a foreign country does not affect the right of the interested party to request the enforcement of the award in France (since the arbitrator is not part of the national legal order of the country of origin) constitutes a fundamental principle under French law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=175&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 04 January 2007 / Germany, Oberlandesgericht Naumburg (Higher Regional Court of Naumburg) / 10 Sch 4/06 / 10 Sch 4/06
Country Germany Court Germany, Oberlandesgericht Naumburg (Higher Regional Court of Naumburg) Date 04 January 2007 Parties 10 Sch 4/06 Case number 10 Sch 4/06 Applicable NYC Provisions II | III | IV | V | V(1) | V(2) | VII | VII(1) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4064&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDFFrance / 21 November 2006 / France, Cour de cassation / Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG / 05-21.818
Country France Court France, Cour de cassation (French Court of Cassation) Date 21 November 2006 Parties Société Groupama Transports v. Société MS Régine Hans und Klaus Heinrich KG Case number 05-21.818 Applicable NYC Provisions II | II(2) | VII | VII(1) Source Bulletin 2006 I N° 502 p. 447, Original decision obtained from the registry of the Cour de cassation
Summary A French company (Deher Frères) entered into a contract with a German company (MS Regine Hans und Klaus Heinrich KG), for the transportation of a passenger ship from Toulon to Pointe-à-Pitre on 31 March 1999. The ship was damaged. The insurer of the French company (Groupama) commenced proceedings before domestic courts. The Cour d'appel de Basse-Terre (Basse-Terre Court of Appeal) dismissed the action and referred the parties to arbitration. Groupama challenged this decision on the grounds that it was not bound by the arbitration agreement included in the contract and that the lower courts had failed to establish that the French company (and its insurer) had knowledge of the content of the said arbitration agreement. The Cour de cassation (Supreme Court) reasoned that the NYC provides for the application of a more favorable domestic law concerning the recognition of the validity of arbitration agreements. It noted that the principles of validity of international arbitration agreements and of Compétence-Compétence preclude a national judge from ruling on the existence, validity and scope of the arbitration agreement before the arbitral tribunal has ruled on these matters, except if the agreement is manifestly void or not applicable, which it held was not the case here. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=174&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 26 June 2006 Case number 26 Sch 28 / 05 Applicable NYC Provisions II | VII | II(1) | II(2) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary The Applicant sought enforcement of an arbitral award rendered in the Netherlands ordering the Respondent to make payment for goods delivered by the Applicant. Following a phone conversation between the parties, the content of which was disputed, the Respondent had sent two purchase orders to the Applicant by fax, which included a reference to the exclusive application of the Respodnent’s general purchasing terms and conditions . The Applicant confirmed receipt of the purchase orders by fax, adding that the purchase orders were subject to the Rules for the Graphic Industry in the Netherlands, which contained an arbitration clause. The Respondent did not respond to the confirmation. Subsequently, the Respondent failed to pay the purchase price and the Applicant initiated arbitration proceedings. During the proceedings, the Respondent did not present arguments on the merits. The tribunal issued an award granting Applicant’s claims and the Applicant sought recognition and enforcement of the award in Germany. The Respondent opposed the enforcement arguing that it had not agreed to the Applicant’s terms and conditions and there was thus no arbitration agreement between the parties. The Oberlandesgericht (Higher Regional Court) Frankfurt rejected the application for recognition, finding that there was no arbitration agreement in writing between the parties as per Article II(2) NYC and that based on Article III and Article V(1)(a) NYC, the award could not be recognized. The Oberlandesgericht stated that although the absence of an arbitration agreement had to be raised during the arbitration proceedings, omitting to do so did not preclude a respondent from raising a defense based on the absence of an agreement in writing, as per Article II NYC, at the enforcement stage. The Oberlandesgericht stated that under Article II(2) NYC, an “agreement in writing” as mentioned in Article II(1) NYC meant an arbitration clause in a contract or a separate arbitration agreement which was signed by the parties or was contained in an exchange of letters or telegrams between the parties. It stated that the burden of proving the existence of such a written agreement rested on the party seeking enforcement. The Oberlandesgericht concluded that based on the Applicant’s allegations alone it was clear that the parties had not concluded an “agreement in writing,” as required under Article II(2) NYC. The Oberlandesgericht clarified that Article II(2) NYC required an exchange of documents between the parties and that a unilateral transmission of a contract was insufficient, in the same way that a unilateral written confirmation of an oral agreement would be insufficient. The Oberlandesgericht added that an oral agreement or tacit acceptance of a contractual offer did not satisfy the requirement of an agreement in writing under Article II(2) NYC. Finally, the Oberlandesgericht held that the requirement that the arbitration agreement be in writing, as per Article II NYC, could not be disregarded based on the more-favorable-right provision of Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1321&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFFrance / 07 June 2006 / France, Cour de cassation / Copropriété Maritime Jules Verne et al v. Société American Bureau of Shipping (ABS) / 03-12.034
Country France Court France, Cour de cassation (French Court of Cassation) Date 07 June 2006 Parties Copropriété Maritime Jules Verne et al v. Société American Bureau of Shipping (ABS) Case number 03-12.034 Applicable NYC Provisions II | VII | VII(1) Source Bulletin 2006 I N° 287 p. 251, Original decision obtained from the registry of the Cour de cassation
Summary The co-ownership Jules Vernes and the owners of the "Tag Heuer" ship, initiated proceedings before the Tribunal de Commerce de Paris (Commercial Court of Paris) in order to obtain compensation for damage to the ship. The American classification company (American Bureau of Shipping) challenged the jurisdiction of French courts on the basis of the arbitration agreement contained in the classification contract providing for arbitration in New York. The Tribunal de commerce de Paris and the Cour d'appel de Paris (Paris Court of Appeal) dismissed the case and referred the parties to arbitration in accordance with Articles II and VII(1) NYC. Following a decision of the Cour de cassation (Supreme Court) reversing the decision of the Cour d'appel de Paris, the case was remanded before the Cour d'appel de Paris which held that French courts lacked jurisdiction to hear the dispute. The Jules Vernes co-ownership challenged this decision on the ground that Article VII NYC allows only for the application of a more favorable domestic law when such law allows such parties to avail themselves of an arbitral award, but does not grant domestic law precedence regarding the conditions in which national courts must refuse to hear a dispute when there is an arbitration agreement. They also claimed that the arbitration agreement was manifestly inapplicable to them given that they were not signatories to the classification contract and that therefore the decision was contrary to Article 1458 of the Code of Civil Procedure. The Cour de cassation affirmed the decision of the Cour d'appel de Paris. It reasoned that the NYC reserves the right to apply domestic law in situations where it is more favorable for the recognition and validity of the arbitration agreement and that the principle of validity of international arbitration agreements and the principle according to which arbitrators have jurisdiction to decide on their own jurisdiction are material rules of French international arbitration law. It then noted that the combination of these principles preclude French Courts from carrying out a substantive, in-depth examination of the arbitration agreement, except in cases where the agreement is void or manifestly inapplicable. On this basis and in light of the complex factual and legal analysis of the dispute, the Cour de cassation held that the Cour d'appel de Paris rightly concluded that as the arbitration agreement was not manifestly inapplicable, the French judge had encroached on the arbitrators' jurisdiction. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=171&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 15 March 2006 Case number 34 Sch 06/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(d) | IV(1) Source DIS Summary The parties concluded a manufacturing contract containing a clause referring disputes at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC). A dispute arose when the supplier allegedly failed to pay under several invoices. The Claimant initiated arbitration and obtained a favorable award, and subsequently sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement and rejected the Defendant's objection that the composition of the tribunal was not in accordance with the Parties' agreement, as the tribunal had been composed of one arbitrator rather than two or more arbitrators as agreed in the arbitration clause. The Court held that the Defendant was aware of this composition but did not object to it during the arbitration proceedings, and was therefore estopped from raising this objection during enforcement proceedings. The Claimant had fulfilled the formal requirements for enforcement under Article IV(1)(a) by supplying the original arbitral award together with a certified copy of its German translation. In virtue of the more-favorable-right provision of Article VII(1) NYC, it was not necessary to supply the arbitration agreement as required by Article IV(1)(b) NYC, because domestic German law does not require it. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=281&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 23 February 2006 Case number III ZB 50/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source BGH Languages English Summary The Parties concluded a contract for the delivery of wood that provided for arbitration pursuant to the Arbitration Rules of the Belorussian Chamber of Industry and Commerce in Minsk. The Defendant did not participate in the proceeding since it considered the arbitration clause to be invalid. The Oberlandesgericht (Higher Regional Court) Karlsruhe rejected the application to declare the award enforceable on the ground of violation of public policy, arguing that the award did not comply with a provision of the Belorussian Arbitration Law providing that in the event of a challenge to its jurisdiction, the arbitral tribunal must rule on its competence in a preliminary award. The Claimant thereafter sought to set aside the decision of the Oberlandesgericht Karlsruhe by a complaint on points of law to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that the Oberlandesgericht Karlsruhe was mistaken in ruling that the award violated public policy. Pursuant to Article VII(1) NYC and the (more favourable) provisions of the German-Soviet Treaty on General Issues of Trade and Maritime Transport of 1958, which was held to apply to Germany's relations with Belorussia, grounds for non-enforcement were more limited than under the NYC, since the Treaty presupposes a violation of international public policy. The Bundesgerichtshof held that the tribunal did not violate international public policy since neither the UNCITRAL Model Law nor the German law required an tribunal to always rule by separate and preliminary award. Because the Parties were not prevented from having the award reviewed by the state courts, their fundamental rights had not been infringed. The Bundesgerichtshof held that the declaration of enforceability could not have been denied on that ground. Yet, it could have been denied on the basis of the absence of a valid arbitration agreement. Since the Oberlandesgericht Karlsruhe did not determine this issue, the matter was referred back to it. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=382&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 28 November 2005 / Germany, Oberlandesgericht München (Higher Regional Court of Munich) / 34 Sch 019/05
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)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 November 2005 Case number 11 Sch 07/04 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted the application for declaration of enforceability of the arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the Respondent had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was to be declared enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application also met the relevant formal requirements, as it had supplied a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the Applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law and, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1313&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 02 November 2005 Case number 11 Sch 15/05 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted enforcement of an arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the enforcement debtor had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application fulfilled the relevant formal requirements, as it had submitted a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1312&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFFrance / 29 September 2005 / France, Cour d'appel de Paris / Direction Générale de l'Aviation Civile de l'Emirat de Dubaï v. Société International Bechtel Co. / 2004/07635
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 29 September 2005 Parties Direction Générale de l'Aviation Civile de l'Emirat de Dubaï v. Société International Bechtel Co. Case number 2004/07635 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary On 20 February 2002, a sole arbitrator ruled in favor of a company registered in Panama (International Bechtel Co.) in a dispute against the Directorate General of Civil Aviation of the Emirate of Dubai (DAC). The award was subsequently set aside by the Dubai Supreme Court on 15 May 2004. In the meantime, International Bechtel sought to enforce the award in France, which was granted by an order of the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris). At the time, the United Arab Emirates was not a party to the NYC and the 1991 Convention on judicial cooperation between France and United Arab Emirates applied to the recognition of arbitral awards. Appealing this decision, DAC requested full recognition, on the basis of the 1991 Convention on judicial cooperation, of the Dubai Supreme Court decision upholding the setting aside of the award. It further argued that the award may not be enforced in France since it did not meet the requirements of the 1991 Convention (which, according to it, provided for the exhaustion of local remedies and the enforceability of the award in the country of origin) and was set aside in application of the law chosen by the parties governing the arbitral procedure. It also claimed that the enforcement judge's disregard of the 1991 Convention constituted an excess of power, that the sole arbitrator did not comply with his mandate (Article 1502 3° of the Code of Civil Procedure) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502 5°). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed DAC's action. It reasoned that the condition relied upon by DAC whereby all recourse must be exhausted in the country of origin before the enforcement of the award may be granted in France is contrary to French fundamental principles of arbitration aiming at facilitating international circulation of awards (which do not foresee the setting aside of an award as a ground for refusing recognition and enforcement). It noted that these principles are applicable in the context of the 1991 Convention which was also concluded to facilitate recognition of awards between the two States, especially since the United Arab Emirates was not a party to the NYC, which reserves the right to apply more favorable French law allowing for the enforcement of an award having been set aside at the seat of the arbitration. The Cour d'appel de Paris then held that decisions rendered following annulment proceedings (similarly to enforcement orders) do not have any international effect outside the country where they have been rendered. It thus examined the grounds for the enforcement of the award, irrespective of the annulment of the award by the Dubai Supreme Court and held that the enforcement of the award was not contrary to the 1991 Convention. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=169&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 2005 Case number III ZB 18/05 Applicable NYC Provisions VII | VII(1) Source BGH Summary The Claimant initiated arbitration in the Netherlands for the payment of works under a sales contract, and obtained an award in its favor. The Defendant had challenged the tribunal's jurisdiction on the grounds that the Parties had entered into an oral agreement and their alleged arbitration agreement was contained in general conditions copied on sales invoices. The Claimant sought recognition and enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Oldenburg denied recognition on the grounds that there was no arbitration agreement in writing pursuant to Articles V(1)(a) and II(2) NYC. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that in matters of recognition and enforcement of foreign arbitral awards, German courts are empowered by Article VII(1) NYC to apply national German law motu propio (without the parties invoking it) if the latter contains more favorable conditions for enforcement. This includes the German conflicts of laws rules, which point to Dutch law as the applicable law to the contract (lex contractus) chosen by the Parties. Pursuant to Dutch case law, a reference in an invoice to standard conditions of contract containing an arbitration clause may validly bind the parties that are in an ongoing business relationship is valid. The Bundesgerichtshof referred the case back to the Oberlandesgericht, which had not addressed this issue. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=278&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFAustria / 26 January 2005 / Austria, Oberster Gerichtshof (Supreme Court) / C**** v. C**** / 3Ob221/04b
Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 26 January 2005 Parties C**** v. C**** Case number 3Ob221/04b Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3885&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFGermany / 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)
Original LanguageAdobe Acrobat PDFSpain / 20 July 2004 / Spain, Tribunal Supremo (Supreme Court) / Antilles Cement Corporation v. Transficem / ATS 9443/2004
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)
Original LanguageAdobe Acrobat PDFGermany / 05 July 2004 / Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) / 4 Z Sch 09/04
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)
Original LanguageAdobe Acrobat PDF