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Hungary / 2002 / Hungary, Kúria (Supreme Court of Hungary) / EBH2002.773
Country Hungary Court Hungary, Kúria (Supreme Court of Hungary) Case number EBH2002.773 Applicable NYC Provisions I | I(1) | I(2) | II | II(1) | II(2) | III | IV | IV(1) | IV(2) | V | V(1) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.kuria-birosag.hu (website of the Supreme Court of Hungary)
Languages Hungarian affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5313&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 22 November 2001 Case number 1 Sch 03/00 Applicable NYC Provisions VII | V | II | VII(1) | V(2)(b) | II(1) Source DIS Summary The Parties negotiated a sales contract in 1997. The Claimant allegedly sent a fax to the Defendant confirming the sales agreement and mentioning “arbitration to be subject to LME (London Metal Exchange) rules and regulations”. Then, the Claimant allegedly sent a fax confirming further sales and containing clause reading "arbitration by LME under English law normal force majeure terms to rule." The original letter was allegedly sent to the Defendant by mail. The Defendant refused to accept or pay for goods shipped by the Claimant. The Claimant commenced arbitration at the LME and obtained favorable award. The award was later declared enforceable by the High Court in London, which also denied the Defendant's motion to set aside. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Rostock denied enforcement, finding that the Claimant had failed to comply with the formal requirement under Article IV(1) NYC to provide the original arbitration agreement or certified copy thereof. In its reasoning, the Claimant could not rely on less stringent requirements of German law - according to which the enforcement of domestic award does not require supplying an arbitration agreement - because international treaties supersede German law on questions related to foreign awards pursuant to Section 1064(III) of the German Code of Civil Procedure. In any event, the more-favorable-right rule under Article VII(1) NYC does not concern formal requirements under the NYC. The Court further considered that there existed grounds for non-enforcement under Article V(1)(a) NYC, since there was no valid arbitration agreement between the Parties within the meaning of Article II NYC. Even if the more-favorable-right rule applied as a matter of principle, in the case at hand, the requirements under German law had not been met. The Court further considered that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) because it would entail that the Defendant had not submitted to the judgment of the arbitral tribunal by its free will. Finally, the Court found that the Claimant was not estopped from raising grounds for non-enforcement because it did not challenge the award for lack of jurisdiction before the juge d'appui. In this case, the tribunal had assumed jurisdiction in an arbitrary manner and without any justification in the parties' agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=258&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 02 October 2001 Parties Fortum Engineering OY-o Ltd v. Global Steel Wire S.A. Case number ATS 1173/2001 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(a) | 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=4044&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 March 2001 Parties Ángel v. Bernardo Alfageme S.A. Case number ATS 695/2001 Applicable NYC Provisions I | IV | V | 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=4047&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 13 March 2001 Parties Project XJ200 Ltd v. H. Capital S.A. (Portic S.A.) Case number ATS 773/2001 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(d) | 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=4048&opac_view=6 Attachment (1)
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Country Korea Court Korea, Seoul High Court Date 27 February 2001 Parties K&V International EMB Co., Ltd. v. Korea Special Precision Machinery Co., Ltd. Case number 2000Na23725 Applicable NYC Provisions I | I(1) | V | V(1) | V(1)(c) | V(2) | V(2)(b) Source Languages Korean reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6416&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 01 February 2001 Case number III ZR 332/99 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties negotiated a charterparty referring to the GENCON General Conditions, which contained an arbitration clause. The Claimant obtained a favourable award from a sole arbitrator and sought enforcement at the Landgericht (Regional Court) Ravensburg, which denied enforcement on the grounds that the sole arbitrator lacked impartiality. The judgment was affirmed by the Oberlandesgericht (Higher Regional Court) Stuttgart, which found that the sole arbitrator had acted on behalf of the Claimant prior to the arbitration, that this could give at least the impression of impartiality, which violated fundamental principles of public policy. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht decision and granted enforcement. It held that the award at issue was a foreign award governed by the NYC. The Court affirmed the lower courts' finding that the Defendant had been duly informed of the arbitration. It considered, however, that the mere fact that a party-appointed arbitrator decided the dispute as a sole arbitrator did not amount to a violation of (international) public policy within the meaning of Article V(2)(b) NYC. According to the Bundesgerichtshof, there must be actual and proven bias rather than an appearance of bias. Furthermore, an objection to enforcement based on bias must first be raised in the country where the award is rendered, unless the Party raising that objection is prevented from doing so. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=255&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 19 December 2000 Parties General Feeds Incorporated v. Lumar Barcelona S.A. Case number ATS 1677/2000 Applicable NYC Provisions II | II(2) | IV | IV(1) | IV(1)(b) | V | 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=4050&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 28 November 2000 Parties Precious Stones Shipping Limited v. Querqus Alimentaria S.L. Case number ATS 1239/2000 Applicable NYC Provisions I | II | II(2) | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | 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=4051&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 29 August 2000 Parties B. SA v. S. Case number 5P.246/2000 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4589&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 20 June 2000 Parties Danske Mejeriers Faellesorganisation v. Agraria del Tormes S.A., D. Jose Daniel, D. Gregorio and D. Juan Pablo Case number ATS 2432/2000 Applicable NYC Provisions I | 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=4055&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 11 April 2000 Parties Unión Générale de Cinema S.A. v. X Y Z Desarrollos S.A. Case number ATS 859/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | 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=4065&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 30 March 2000 Case number 16 SchH 05/99 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(a) | IV(1)(b) | II(2) Source DIS Languages English Summary The Defendant purchased goods from the Claimant since 1995. In 1997, the Defendant placed an order and the Claimant confirmed the sale by telefax using its standard form which contained a reference to the General Conditions of Sale printed on the reverse side which on its face contained an arbitration clause providing for arbitration at the Court of Arbitration of the Hungarian Chamber of Commerce. The Claimant only sent the front side of the contract form which the Defendant signed and faxed back to the Claimant. The dispute arose and the Claimant commenced arbitration proceedings. The Court rendered a preliminary award in the Claimant’s favor and thereafter a final award which the Claimant sought to enforce before German Courts. The Oberlandesgericht (Higher Regional Court) Schleswig enforced the award, holding that both the requirements of Article IV NYC and Sections 1061 and 1064 of the ZPO (Zivilprozessordnung) had been met. The Court deemed that the contract form signed by the Defendant and faxed to the Claimant fulfilled the formal requirements of Article II(2) NYC. The Court dismissed the Defendant’s objection based on Article V(1)(a) NYC, by stating that Article V(1)(a) presupposes a formally valid arbitration agreement which the Claimant has the burden to prove. The Court stated that the substantive rule in Article II(2) prevails over any national law “be it more or less strict as to the formal requirements”. Moreover, the Court stressed that the Defendant cannot argue that it was not aware of the arbitration clause printed on the reverse side as the Parties were in ongoing business relationship pursuant to which the Claimant would always use the same form for the conclusion of its contracts with the Defendant. Accordingly, the Court stressed that even if there were no formally valid arbitration agreement, this defect would have been cured since the Defendant failed to object the tribunal’s jurisdiction during the arbitration and thus waived its right to object at a later stage of the proceedings. The Court specified that the prohibition of contradictory behavior is a legal principle that needs to be taken into account within Article II(2). The Court found that the fact that the Defendant did not initiate annulment proceedings before Hungarian Courts did not preclude it from resisting enforcement under Article V(1)(a) . The Court further found that it was not bound by the arbitral tribunal’s finding on jurisdiction and found that under the applicable Hungarian provision, the formal defect was cured when the Defendant entered into the merits of the arbitration claim without objecting the substantive validity of the arbitration agreement. Finally, the Court dismissed alleged violation under Article V(1)(d) NYC, based on the fact that the procedural language of the arbitration was Hungarian, since the Defendant had a Hungarian counsel, and found the award was not contrary to German public order pursuant to Article V(2)(b). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=423&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 March 2000 Case number 5P.371/1999 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary An arbitration tribunal in London ordered B to pay S; relying on that award, S applied to the High Court in London for B to be wound up. The High Court so ordered but its decision was reversed on appeal because there was a counterclaim from B against S which remained undecided. S sought to enforce the award in Switzerland; the decision of the Tribunal of First Instance to enforce the award was reversed on appeal on the basis of the Court of Appeal’s decision in London. S appealed. The Swiss Federal Tribunal allowed the appeal. Considering Article V(1)(e) NYC, the Tribunal stated that ‘recognition and enforcement must be refused if the award has been suspended’ in the country of origin. It noted that the decision of the Court of Appeal in London did not amount to a suspension of the award’s enforcement and that the Court of Appeal did not cast doubt on the award’s validity. Article V(1)(e) NYC was therefore inapplicable (2.b) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=565&opac_view=6 Attachment (2)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 15 February 2000 Case number 9 Sch 13/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary A distribution contract contained a clause for resolution of disputes at the London Court of International Arbitration (LCIA) and for the application of Spanish law. The Distributor obtained a favorable award and the Seller filed a request for annulment with the LCIA, alleging false testimony by Distributor's representatives. This request was pending at time of the enforcement decision in Germany. The Oberlandesgericht Köln (Higher Regional Court Cologne) granted enforcement. It reasoned that even if the Seller's argument that the arbitral tribunal should have applied the Convention on the International Sale of Goods rather than Spanish law were correct, there would be no violation of German international public policy justifying non-enforcement under Article V(2)(b) NYC. According to the Oberlandesgericht, an award may only be reviewed by the enforcing court to ascertain whether it violates the elementary principles of the German legal system. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=249&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 08 February 2000 Parties Vinalmar S.A. v. Gaspar Peral y Cía S.L. Case number ATS 16/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(a) | V(1)(d) | 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=4068&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 February 2000 Parties Project XJ220 LTD v. D. Federicoa Case number ATS 469/2000 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(1)(b) | IV(2) | V | V(1) | V(1)(b) | 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=4070&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 21 December 1999 Parties Ibermat S.A.R.L. v. Guascor S.A. Case number ATS 2130/1999 Applicable NYC Provisions V | V(2) | 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=4071&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Bremen Date 30 September 1999 Case number (2) Sch 04/99 Applicable NYC Provisions V | IV | V(2)(b) | V(1)(d) | V(1)(c) | V(1)(b) Source DIS Languages English Summary The parties were both shareholders in a Turkish limited liability company whose bylaws contained an arbitration agreement. The Applicant initiated arbitration proceedings at the Arbitral Commission of the Istanbul Chamber of Commerce, which issued an award in its favor. Shortly before the issuance of the award, the Respondent had filed an action at the local court of Istanbul requesting the court to declare that the arbitral tribunal lacked jurisdiction. Both the local court and the Court of Cassation dismissed the Respondent’s action. The Respondent also sought annulment of the arbitral award on the grounds that the arbitral tribunal had rendered its decision without awaiting the outcome of the decision of the state courts, which was granted by the Turkish Court of Cassation. The Applicant then initiated new arbitration proceedings requesting that the Respondent be ordered to make payment in accordance with the first award. The newly constituted arbitral tribunal issued a second award in the Applicant’s favor. The Respondent’s application to annul the second award was rejected by the Turkish Court of Cassation. The Applicant sought enforcement of the second award in Germany, which the Respondent opposed arguing that: (i) it was not given an opportunity to present its case under Article V(1)(b) NYC; (ii) that pursuant to Article V(1)(c) NYC the dispute was not covered under the arbitration agreement as the arbitration agreement applied only to disputes involving the company Atlanata Tuerkiye Ltd. Sireketi and the arbitral tribunal had misinterpreted the arbitration agreement; (iii) that under Article V(1)(d) NYC, the arbitral proceedings did not comply with the provisions of the Turkish Code of Civil Procedure which was the law of the country in which the arbitration is seated ; and (iv) that the recognition and enforcement of the arbitral award violated German public policy (Article V(2)(b) NYC). The Hanseatisches Oberlandesgericht (Higher Regional Court) Bremen granted leave to enforce the second arbitral award. It found that the formal requirements under Article IV NYC had been met. It then addressed the grounds for refusal of enforcement that the Respondent had raised. The Hanseatisches Oberlandesgericht held that the Respondent´s right to present its case under Article V(1)(b) NYC had not been violated since it had been given the opportunity to present, and indeed had presented, its defenses in both the first and second arbitral proceedings. To the extent that the arbitral tribunal had disregarded any defenses raised by the Respondent, this could merely be relevant under the aspect of a potential violation of the right to be heard (under Article V(2)(b) NYC). The Oberlandesgericht also rejected the Respondent’s defense under Article V(1)(c) NYC. It held that disputes regarding the present company were covered under the arbitration agreement because the company was not a different enterprise but had merely changed its name. In addition, it rejected the Respondent’s argument that the Turkish courts had misinterpreted the arbitration agreement holding that under the principle of automatic recognition of foreign courts the German courts were bound by the decision of the Turkish courts, which had conclusively confirmed the jurisdiction of the arbitral tribunal. With respect to the Respondent´s allegations under Article V(1)(d) NYC that the arbitral tribunal did not decide in accordance with the Turkish Code of Civil Procedure, the Hanseatisches Oberlandesgericht stated that by agreeing on the Arbitral Commission of the Istanbul Chamber of Commerce and Industry, the parties also agreed on the application of its Arbitration Rules and that the arbitral tribunal had conducted its proceedings in compliance with such rules. The Hanseatisches Oberlandesgericht further dismissed the Respondent´s argument that the enforcement of the award violated German public policy under Article V(2)(b) NYC because the arbitral tribunal had allegedly not considered certain arguments and evidence submitted by the Respondent. It stated that a violation of due process could only have occurred in the case where the relevant evidence could have influenced the outcome of the proceedings. Moreover, it clarified that German international public policy was violated only when the “decision of the foreign arbitral tribunal was rendered in proceedings that were to such an extent at odds with basic principles of German procedural law, that in the German legal system the decision cannot be deemed to have been rendered in proper legal proceedings because of a grave defect that affects the principles of public and economic life”. It further noted that, since international arbitral tribunals are composed of arbitrators with different domestic legal backgrounds, the requirements regarding the extent to which an arbitral award discusses the respective parties’ arguments as well as regarding the overall reasoning of the decision were lower and only needed to meet the more lenient requirements of German international public policy. Moreover, the Hanseatisches Oberlandesgericht also rejected the Respondent’s argument that the arbitral tribunal had wrongly concluded that the Applicant’s claims were not time-barred. It reasoned that it could only assess whether an arbitral award had correctly applied the substantive law if it were determinative of whether the recognition of the arbitral award violated public policy. However, it found, that there was no ground to assume a violation of public policy in the present circumstances since that would mean that the application of the relevant Turkish substantive law was in such stark contrast to the fundamental principles of German law and the perceptions of justice contained therein that it would be intolerable under domestic standards. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1332&opac_view=6
Country Germany Court Germany, Oberlandesgericht Brandenburg Date 02 September 1999 Case number 8 Sch 01/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary The Parties concluded a contract of sale containing a clause providing for arbitration before the Court of International Arbitration in Kiev. Bankruptcy proceedings were subsequently commenced against the Buyer in July 1998. In October 1998, the Seller obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg enforced the award, finding that the enforcement proceedings were unaffected by the Buyer's bankruptcy, because the declaration of enforceability of a foreign arbitral award is not an executory measure but rather a preliminary measure having no executory effect. The Oberlandesgericht further found that there were no grounds for refusal under Article V(2)(b) NYC. There was no violation of German public policy in this case, as it did not suffice for German substantive public policy to be violated that a German court, if it had decided the dispute, would have reached a different conclusion based on German mandatory law. According to the Oberlandesgericht, for there to be a violation of public policy, the conclusion reached by applying foreign law should contrast in such a manner with the fundamental principles of German law and principles of justice contained therein as to appear unacceptable from a domestic point of view. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=245&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 24 June 1999 Case number 16 SchH 01/99 Applicable NYC Provisions V | V(2)(b) | V(1)(c) | V(1)(a) Source DIS Summary The Parties entered into a five-year contract containing a clause for arbitration at the International Chamber of Commerce (ICC). The Defendant terminated the contract and the Claimant, a successor to a State enterprise that had signed the arbitration agreement, obtained a favorable award from a sole ICC arbitrator. In the course of the arbitration, the ICC had dismissed the Defendant's challenge to the sole arbitrator for bias. The Claimant sought to enforce the award in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement. It held that there were no grounds for non-enforcement under Article V(1)(a) NYC, as it was bound by the arbitrator's finding on legal and factual grounds that the Claimant was a successor to the signatory of the agreement. Nor were there grounds for non-enforcement under Article V(1)(c) NYC, as it was equally bound by the arbitrator's finding that the Claimant's claim for payment was covered by the arbitration agreement, and this argument could not be raised in enforcement proceedings. According to the Court, there had been no violation of due process justifying non-enforcement under Article V(1)(b) NYC or bias justifying non-enforcement under Article V(1)(d) NYC. Nor was there any violation of public policy under Article V(2)(b) NYC. It reasoned that the recognition of foreign awards is subject to a less stringent regime than domestic awards because there is a distinction between international and domestic public policy. The recognition of foreign arbitral award is to be denied only in instances of obvious and grave defects that affect fundamental legal principles. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=244&opac_view=6 Attachment (1)
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Country Hong Kong Court Hong Kong, Court of Final Appeal, Hong Kong Special Administrative Region Date 09 February 1999 Parties Hebei Import & Export Corporation v. Polytek Engineering Company Limited Case number FACV 10/1998 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source [1999] 1 HKLRD 665; [1999] 2 HKCFAR 111 | http://www.judiciary.gov.hk (website of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China)
Languages English Summary On March 29, 1996, an arbitral tribunal within the China International Economic and Trade Arbitration Commission rendered an award in favor of plaintiff-appellant, Hebei Import & Export Corporation (“Hebei”) and against defendant-appellee, Polytek Engineering Company (“Polytek”). Hebei obtained an order to enforce the award in Hong Kong on July 23, 1996. The Court of Appeal allowed Polytek’s appeal (based on Section 44 of the Arbitration Ordinance, which implements Article V NYC) to set aside the enforcement order on the grounds that (1) the Tribunal exhibited apparent bias; (2) this bias constituted a fundamental flaw in the arbitral procedure; and (3) it would be contrary to Hong Kong’s public policy to enforce an award that was the product of such a flawed proceeding. Hebei appealed. The Court of Final Appeal reversed the lower court's decision, finding that Polytek could have raised the issue of potential bias before the Tribunal but chose not to do so. As such, Polytek was estopped from now claiming that the Tribunal’s apparent bias violated Hong Kong public policy. The Court noted that refusing to enforce a Convention award requires a high burden of proof, unmet by Polytek in this case. reverses : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §55
- 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)) / b. International – transnational public policy / §14
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §6
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §59
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §5
- Hong Kong / 15 May 1997 / Hong Kong, High Court, In the Supreme Court of Hong Kong / Hebei Import & Export Corporation v. Polytek Engineering Company Limited / HCMP 2083/1996
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=494&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 13 January 1999 Case number 11 Sch 06/98 Applicable NYC Provisions V | V(2)(b) Source DIS Summary In Spring 1992, the Claimant negotiated a sales contract with Company X. During negotiations preceding the sale, the general manager of Company X allegedly received a copy of the Claimant's general conditions of sale, which contained an arbitration clause providing for arbitration at the International Chamber of Commerce (ICC). By confirmation of order in May 1992, the sale was concluded between the Claimant and the first Defendant, who is a general partner in the second Defendant. The Claimant allegedly enclosed its conditions with its confirmation of order. The Claimant then sold other goods to the first Defendant and attached its general conditions to the confirmations for these sales. A dispute arose between the parties when the Defendants alleged that the product was defective and refused to pay part of the sales price. The Claimant obtained a favorable ICC award for damages amounting to unpaid sale price, and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Oberlandesgericht Dresden granted enforcement, finding that no grounds for refusal under Article V(2)(b) NYC existed. Although it considered that German law prohibits an agreement for lump sum damages in general conditions of sale, in this case lump sum damages were permitted under the law applicable to the dispute, and were not so high as to be at odds with German public policy. The Oberlandesgericht reached the same conclusion with respect to the arbitral tribunal's decision on attorney's fees. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=243&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 01 December 1998 Parties Lenersan Poortman B.V. v. Salvador Martínez Mari S.L. Case number ATS 968/1998 Applicable NYC Provisions I | 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=4077&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 29 September 1998 Parties ETS Sebtigrains v. Armengol Hermanos S.A. Case number ATS 1436/1998 Applicable NYC Provisions I | II | IV | IV(1) | IV(1)(a) | IV(2) | V | 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=4079&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Second Circuit Date 02 September 1998 Parties Europcar Italia, S.p.A. v. Maiellano Tours, Inc. Case number 97-7224 Applicable NYC Provisions V | VI | V(2)(b) | V(1)(e) Languages English Summary Maiellano Tours, Inc. (“Maiellano”), an American travel agency, and Europcar Italia S.p.A. (“Europcar”), an Italian car rental business, entered into a service agreement which contained a clause providing for arbitration under rules known in the Italian legal system as “arbitrato irrituale in equità” (informal proceedings). A dispute arose and an arbitral tribunal rendered a monetary award in favor of Europcar. Europcar commenced an action in Italian courts to confirm the arbitration award and to obtain an order of payment. While litigation was underway in the Italian courts, Europcar filed an action in the Eastern District of New York seeking recognition and enforcement of the arbitral award pursuant to the NYC and Section 207 of the Federal Arbitration Act (“FAA”). The District Court entered judgment for Europcar. Maiellano appealed the decision, arguing that: (i) an award granted under the rules known as “arbitrato irrituale” does not give rise to a binding arbitral award which can be enforced under the NYC and that the parties did not intend to be legally bound by such a decision; (ii) that the award was based on a forged contract and was therefore contrary to United States public policy; and (iii) the District Court should have suspended the proceedings to await the outcome of the pending Italian litigation. The United States Court of Appeals for the Second Circuit vacated the decision of the lower court and remanded the case to the District Court to reconsider its decision not to adjourn the enforcement proceedings pending the outcome of the Italian appeal. The Court found that the arbitration award was binding upon the parties under Article V(1)(e) NYC, because awards made under arbitrato irrituale are contractually binding on the parties even if they are not automatically enforceable. The Court then rejected Maiellano’s argument that the enforcement of the award would be contrary to the public policy of the United States under Article V(2)(b) NYC, holding that the issue of whether the underlying contract was forged was a matter to be determined exclusively by the arbitrators. It considered that since Maiellano had failed to raise this claim before the arbitral tribunal, the issue was now forfeited. The Court finally held that that Article VI NYC gives discretion to a court to adjourn proceedings on the enforcement of the award when proceedings to set aside or suspend the award are ongoing before a competent authority of the country in which the award was made. The Court noted that a District Court must take into account the tension between expeditious resolution of disputes, on the one hand, and the possibility of conflicting results, on the other, when deciding on adjournment of enforcement proceedings. see also :
- VI / 2. ANALYSIS (VI) / d. The discretionary power of the courts to adjourn the decision on enforcement or order security / §20
- VI / 2. ANALYSIS (VI) / b. Various factors considered by courts / §33
- VI / 2. ANALYSIS (VI) / a. The absence of a standard / §26
- VI / 2. ANALYSIS (VI) / b. The application for the setting aside or suspension of an award must be made to a 'competent authority' / §14
- VI / 2. ANALYSIS (VI) / c. Whether there are any prevailing factors to be considered by courts / §44
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. Estoppel and waiver / §50
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1135&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 30 July 1998 Case number 6 Sch 3/98 Applicable NYC Provisions V | V(2)(b) | V(1)(b) | V(1)(c) | V(1)(d) Summary The Claimant sought enforcement of an award rendered in London. The Defendant maintained that there is no valid arbitration clause within the meaning of Article II NYC, that the award was vitiated by lack of oral hearing and the granting of post-award interest that had not been claimed. The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement, holding that parties validly concluded agreement by exchange of telefaxes. It reasoned that there were no grounds for refusal under Article V(1)(b) NYC, as the Defendant had been duly informed of the proceedings and the arbitral tribunal had otherwise complied with the requirements of due process. The Court reasoned that arbitral rules provide that decision could be rendered without oral hearing, so there were no grounds for refusal under Article V(1)(d) NYC. An arbitral tribunal can, at its discretion, award interest and not exceed its authority in the sense of Article V(1)(c) NYC. The Court held that an award could be refused enforcement under Article V(2)(b) only where arbitration is vitiated by a grave fault that affects fundamentals of social and economic life. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=240&opac_view=6 Attachment (1)
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Country United States Court United States, U.S. Court of Appeals, Eleventh Circuit Date 22 May 1998 Parties Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH Case number 94-2982, 94-2530 Applicable NYC Provisions I | V | I(1) | V(1)(d) | V(2)(b) Source online: http://www.ca11.uscourts.gov/ (official website of the U.S. Court of Appeals for the Eleventh Circuit) Languages English Summary Nitram, Inc. (“Nitram”) entered into a sale and purchase contract with Barnard and Burk Group, Inc., (“Barnard and Burk”), which in turn contracted with M.A.N. Gutehoffnungshütte GmbH (“MAN GHH”) to purchase equipment for the purpose of resale. The sale and purchase contract contained an arbitration clause providing for arbitration under the aegis of the American Arbitration Association (“AAA”) in Tampa. A dispute arose and an arbitral tribunal rendered an award in favor of MAN GHH and, in subsequent rulings, ordered Barnard and Burk to pay costs to MAN GHH. Barnard and Burk filed a motion to vacate the arbitral awards. The District Court denied the motion and confirmed the awards. Barnard and Burk appealed on the grounds that (i) the arbitrators had failed to conduct the arbitration proceedings in accordance with the arbitration clause; (ii) the arbitrators improperly admitted certain testimony and evidence and thus violated public policy, and (iii) the award was arbitrary and capricious. The United States Court of Appeals for the Eighth Circuit affirmed the District Court’s judgment confirming the award but vacated the order refusing to award prejudgment interest to MAN GHH. It held that the District Court had erred in holding that the proceedings were controlled by Chapter 1 of the Federal Arbitration Act (“FAA”), and instead found Chapter 2 of the FAA, relating to international arbitral proceedings, to be applicable. In so holding, the Court of Appeals held that pursuant to Article I(1) NYC, the NYC applied to awards “not considered as domestic awards in the State where their recognition and enforcement are sought”. It then interpreted Section 202 of the FAA to imply that arbitral awards that were not “entirely between citizens of the United States” were non-domestic for purposes of Article I(1) NYC. It held that the award before it was a non-domestic award, falling under the NYC. As to Barnard and Burk’s first argument, the Court of Appeals found that there was no violation of Article V(1)(d) NYC, as the admission of a report of a German technical institute on wrecks did not contravene the AAA Rules, and was therefore in accordance with the agreement of the parties. As to the second argument, it found that the admission of certain testimony did not violate public policy within the meaning of Article V(2)(b) NYC, as an award could only be rejected enforcement if it violated “explicit public policy that is well-defined and dominant”. In rejecting the third argument, the Court of Appeals found that an award being “arbitrary and capricious” was not one of the exclusive grounds for denying enforcement under Article V NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1123&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 02 April 1998 Parties Compagnie française d'études et de construction Technip (Technip) v. Entreprise nationale des engrais et des produits phytosanitaires (Asmidal) Case number 97/6929 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An ICC award was rendered in Zurich on 8 July 1996 in favor of an Algerian Company (ASMIDAL). In an order issued on 6 January 1997, the President of the Tribunal de Grande Instance de Paris allowed enforcement of the award in France. Appealing this decision, the losing party (Technip) argued that the enforcement order should be overturned pursuant to Article 1502 of the Code of Civil procedure given that (i) the arbitral tribunal had wrongly upheld jurisdiction, (ii) the arbitral tribunal had not properly been constituted, (iii) the arbitral tribunal had not complied with the mandate conferred upon it, (iv) due process had been violated, and (v) recognition and enforcement was contrary to international public policy. In response, ASMIDAL claimed that only the provisions of the NYC should be applied. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order and dismissed the action. It first reasoned that the procedure pertaining to the enforcement of the award in France is subject to the conditions set forth by both the NYC, ratified by France and Switzerland, and French rules on enforcement of awards. It added that the control of the regularity of an award by French Courts in order to allow its integration in French legal order may be based on either the NYC or French law (notably, Articles 1498 and 1502 of the Code of Civil Procedure); while noting that pursuant to Article VII NYC, the provisions of French law which are more favorable to the enforcement of the award must prevail. It then dismissed each claim for refusing enforcement of the award, after noting that the provisions of French law invoked (Article 1502 of the Code of Civil Procedure) are similar to that of the NYC. In this respect, the Cour d'appel de Paris held that (i) Article V(1)(a) NYC and Article 1502 1° (on whether the arbitral tribunal ruled without an arbitration agreement or on the basis of an arbitration agreement which was null and void) address similar situations, (ii) Article V(1)(b) NYC and Article 1502 4° (violation of due process) have the same scope, except that the latter refers to the principles of French law in an international context, (iii) Article V(1)(c) NYC and Article 1502 3° (as to the obligation of the arbitral tribunal to comply with the mandate conferred upon it) have the same scope, and (iv) Article 1502 includes the same provisions as Article V(1)(d) NYC (regarding the constitution of the arbitral tribunal). Lastly, it ruled that Article 1502 5° (as to the violation of international public policy) is in "perfect harmony" with Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=153&opac_view=6 Attachment (1)
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Country France Court France, Cour de cassation (French Court of Cassation) Date 24 March 1998 Parties Société Excelsior Film TV v. Société UGC-PH Case number 95-17.285 Applicable NYC Provisions V | V(2) | V(2)(b) Source Original decision obtained from the registry of the Cour de cassation
Summary An award was rendered in Rome in favor of an Italian company (Excelsior) against a French company (UGC-PH). The Cour d'appel de Paris (Paris Court of Appeal) refused enforcement of the award in France by ruling that it was contrary to international public policy as one of the arbitrators did not fulfill the requirement of impartiality. Excelsior challenged this decision on the grounds that the Cour d'appel de Paris not only had disregarded the terms of the dispute and distorted the foreign award, but had also violated the NYC, whose provisions prevail over domestic law and which allows for a refusal of enforcement on the basis of public policy if it relates to the recognition and enforcement of the award and not, as it did, to the Court's decision-making process. The Cour de cassation (Supreme Court) affirmed the decision of the Cour d'appel de Paris and dismissed the action. It reasoned that the provisions of Article V(2)(b) NYC are essentially identical to those of Article 1502 5° of the Code of Civil Procedure, in that they allow refusal of enforcement of an award which was rendered abroad in violation of the public policy of the country where the enforcement is sought. In the case at hand, the Cour de Cassation held that that the constitution of the arbitral tribunal violated due process and that therefore the award was contrary to French public policy under both Article V(2)(b) NYC and Article 1502 5° of the Code of Civil Procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=152&opac_view=6 Attachment (1)
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