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France / 24 November 2011 / France, Cour d'appel de Paris / Société Egyptian General Petroleum Corporation (EGPC) v. Société National Gas Company (NATCAS) / 10/16525
Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 24 November 2011 Parties Société Egyptian General Petroleum Corporation (EGPC) v. Société National Gas Company (NATCAS) Case number 10/16525 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Cour d'appel de Paris
Languages English Language(s) French Summary A gas supply contract was concluded between an Egyptian public entity (Egyptian General Petroleum Corporation - EGPC) and another Egyptian company (National Gas Company - NATGAS). NATGAS subscribed various US dollar denominated loans in the context of the transaction. A decree subsequently cancelled the Egyptian currency's parity with the US dollar, which increased the financial burden upon NATGAS. EGPC refused to bear these additional costs and NATGAS filed a Request for arbitration before the Regional Commercial Arbitration Center of Cairo. In an award dated 12 September 2009, the arbitral tribunal ruled in favor of NATGAS. In an order issued on 19 May 2010, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award. EGPC appealed this decision on several grounds: (i) the award had been annulled by the Egyptian Courts, (ii) the arbitration agreement was void or nonexistent, (iii) violation of due process, (iv) violation of international public policy. The Cour d'appel de Paris (Paris Court of Appeal) first stated that Articles 1498 et seq. of the Code of Civil Procedure (i.e. now Articles 1514 and et seq. pursuant to the French Decree of 13 January 2011) apply to both international arbitral awards and arbitral awards rendered abroad. In accordance with Article VII NYC, it ruled that French law is applicable as being more favorable than the NYC (given than it does not provide the setting aside of a foreign award as a ground for non-enforcement) and rejected EGPC's claim based on Articles 1502 5° of the Code of Civil Procedure (i.e. now Articles 1514 and 1520 5°). It also dismissed the other claims raised by EGPC and upheld the enforcement of the award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=396&opac_view=6 Attachment (1)
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Country India Court India, High Court of Delhi Date 11 August 2011 Parties Anita Garg v. M/s Glencore Grain Rotterdam B.V. Case number FAO(OS) No. 316/2011 & CM No. 11823/2011 Applicable NYC Provisions VII Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5870&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 12 April 2011 Parties N/A Case number XI ZR 341/08 Applicable NYC Provisions II | VII Source Languages German affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4060&opac_view=6 Attachment (1)
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Country Serbia Court Serbia, Privredni Apelacioni Sud (Commercial Court of Appeal) Date 16 March 2011 Case number 6Pvž. 215/11 Applicable NYC Provisions IV | I | V | VII | I(3) Source Original decision obtained from the Registry of the Commercial Court of Appeal (Privredni apelacioni sud)
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1701&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 January 2011 Case number XI ZR 350 / 08 Applicable NYC Provisions VII | II | II(2) Source DIS Languages English Summary The three Claimants, all German citizens living in Germany, sought damages from a brokerage house in the United States, the Defendant, for losses arising from stock option transactions on the US stock exchange. The Defendant cooperated with various agents worldwide who conducted financial transactions on US stock exchanges via an online platform. Following a telephone advertisement, the Claimants signed standard form contracts with one of the Defendant’s agents for the provision of stock option services. In addition, they also signed the Defendant’s “Option Agreement and Approval Form”, which contained an arbitration clause. The Defendant opened individual investment transaction accounts for each of the Claimants. Subsequently, the Defendant sent its standard Terms and Conditions to Claimants, which contained a different arbitration clause from the one contained in the broker’s standard form contract and which, moreover, foresaw the application of New York substantive law. The Claimants subsequently terminated the brokerage agreements and raised tort claims before the Landgericht (Regional Court) Duesseldorf. The Defendant objected to the jurisdiction of the German court, arguing, inter alia, that the dispute should be referred to arbitration based on the existence of an arbitration agreement between the parties. The Landgericht rejected the Claimants’ claims, following which the Claimant’s appealed to the Oberlandesgericht (Higher Regional Court) Duesseldorf. The Oberlandesgericht held that it had jurisdiction over the dispute and granted the majority of the Claimants’ claims. The Defendant appealed to the Bundesgerichtshof (Federal Supreme Court) on points of law, seeking a reversal of the Oberlandesgericht's decision and the reinstatement of the Landgericht’s decision. The Bundesgerichtshof rejected the Defendant’s appeal and upheld the Oberlandesgericht’s finding on jurisdiction, finding the respective arbitration clauses to be either non-binding or invalid. It held that the arbitration agreement that the Claimants had signed had not become binding on one of the Claimants pursuant to Section 37(h) of the Wertpapierhandelsgesetz (German Securities Trading Act), since that party was not a merchant and hence subjectively not capable to arbitrate pursuant to that legislation. The Bundesgerichtshof held that as regards the other two Claimants, the arbitration agreements were invalid for formal reasons, as they neither fulfilled the requirements of Article II(2) NYC nor those of the less stringent German law, which would apply pursuant to the more-favorable-right provision at Article VII NYC. The Bundesgerichtshof reasoned that the contracts containing the relevant arbitration agreements were consumer contracts under German law and hence, under Section 1031(5) of the German Civil Procedure Code, subject to the more strict form requirements for arbitration agreements involving consumers. It concluded that the arbitration agreements did not meet these requirements since, inter alia, they had not been signed by both parties. The Bundesgerichtshof upheld the Oberlandesgericht’s decision on merits granting damages to the Claimants. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1306&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 24 January 2011 Parties I-9 U 7/10 Case number I-9 U 7/10 Applicable NYC Provisions II | II(2) | VII Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4061&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 20 January 2011 Case number 20 Sch 09/09 Applicable NYC Provisions II | VII | II(2) | VII(1) Source Original decision obtained from the registry of the Kammergericht. Languages English Summary A Czech Seller of sugar sought enforcement in Germany before the Kammergericht (Higher Regional Court Berlin) of an arbitration award rendered against a German Buyer, following an arbitration in London under the arbitration rules of the Refined Sugar Association (RSA). The Buyer opposed enforcement and raised certain counterclaims in the enforcement proceedings. The Seller argued that the counterclaims were inadmissible in the proceedings because the three contracts which formed the basis for the Buyer’s counterclaims all contained arbitration clauses. The Buyer, in contrast, argued that the arbitration clauses in two of the contracts were invalid since they had only been signed by the Buyer but not by the Seller. The Kammergericht granted enforcement without hearing the Buyer’s counterclaims, finding that the arbitration clauses in all of the three contracts were valid. It considered that the arbitration clause contained in the contract signed by both parties was valid since it clearly met the formal requirements under Article II(2) NYC. The Kammergericht held that the validity of the arbitration clauses in the other two contracts resulted from the application by analogy of Section 1031(2) of the German Code of Civil Procedure, pursuant to which an arbitration agreement was valid if it was contained in a document transmitted by one party to the other party, provided that the content of the document could customarily be considered as contractually agreed, if the receiving party did not object to it in a timely manner (“kaufmaennisches Bestaetigungsschreiben”). The Kammergericht noted that under the more-favorable-right provision at Article VII NYC, the less stringent requirements under German law were applicable instead of those in the NYC. It concluded that since all three arbitration clauses were valid, the Buyer’s counterclaims were inadmissible based on the application by analogy of Section 1032(1) of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1304&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Supreme Court of United Kingdom Date 03 November 2010 Parties Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Case number UKSC 2009/0165 Applicable NYC Provisions II | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(e) | V(2) | V(2)(b) | VI | VII | VII(1) Source [2010] UKSC 46, [2011] 1 AC 763 | online: BAILII
Languages English Summary Dallah, a Saudi Arabian company, entered into a memorandum of understanding with the Pakistani government regarding housing in Mecca, Saudi Arabia, for Pakistani pilgrims. A Pakistani presidential ordinance established a trust, which entered into an agreement with Dallah. This agreement provided for disputes between Dallah and the trust to be resolved by arbitration under the rules of the International Chamber of Commerce ("ICC"). After the trust had expired and therefore ceased its legal existence, Dallah instituted ICC arbitration in Paris against the Pakistani government’s Ministry of Religious Affairs. In a partial award on jurisdiction, the tribunal sitting in Paris held that the Ministry was bound by the arbitration agreement and that the tribunal accordingly had jurisdiction. It issued another partial award on liability and a final award in favour of Dallah. Dallah sought to enforce the final award in England. The government of Pakistan successfully resisted enforcement in the English High Court. The High Court set aside a previous order granting leave to enforce the award, under section 103(2)(b) of the Arbitration Act 1996 (U.K.) ("the Act") (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement). Specifically, enforcement was refused due to the lack of a valid arbitration agreement between the parties under the law of the country where the award was made. Dallah appealed to the Court of Appeal, which dismissed Dallah's appeal. Dallah then appealed to the Supreme Court and also applied for enforcement of the final award in France. The Pakistani government applied in France to set aside all three awards. The U.K. Supreme Court refused to grant Dallah a stay of its appeal pending resolution of its French proceeding. The parties' submissions to the Supreme Court proceeded on the basis that the party resisting enforcement under Article V(1)(a) NYC had the burden to prove that it was not bound by the arbitration agreement. The Supreme Court affirmed the decisions of the lower courts and dismissed the appeal. Enforcement of the award was refused under section 103(2)(b) of the Act. Since there was no explicit choice of the law governing the arbitration agreement, the law governing its validity was held to be the law (excluding conflicts of law rules) of France, the country where the award was made. The Court stated that despite the NYC's pro-enforcement policy and the fact that the burden of proof is on the resisting party, the Court was not bound or limited by the tribunal's jurisdictional decision. The tribunal's reasoning was considered flawed as it did not follow what the Court considered to be the appropriate French legal standards. Under Article V(1)(a) NYC, validity of an arbitration agreement included the issue of whether a party was in fact bound by it. Accordingly, enforcement was refused under that provision. Given the lack of a valid and binding arbitration agreement between the parties, as required by Article II NYC, the Court also declined to enforce the award under any discretion stemming from the word "may" in Article V(1) NYC. The Court suggested, drawing on Article V(2)(b) NYC, that a different result could ensue if the foreign law invalidating the arbitration agreement violated an important public policy. It was also noted that absent party agreement in compliance with Article IV(1) NYC to submit the question of arbitrability to the tribunal, the NYC is not concerned with preliminary awards on jurisdiction (as against final awards). The Court also made brief references to Articles V(1)(c), V(1)(e), VI, and VII(1) NYC, distinguishing the effect of these provisions or case law applying them from this case. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=798&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 30 September 2010 Case number III ZB 69/09 Applicable NYC Provisions VII | V | II | V(1)(a) | II(2) | VII(1) Source BGH Languages English Summary A party sought enforcement of a foreign arbitral award in Germany. The issue that was dealt with throughout the proceedings before the courts was that a provision of German law foresees that the NY Convention alone applies to the recognition and enforcement of foreign arbitral awards (§ 1061 of the German Code of Civil Procedure). Thus, the question arose whether German law could accept the reference made back to German domestic arbitration law by Article VII(1) NYC for the requirement of an "agreement in writing" set out in Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt/Main granted enforcement. Although there was no written arbitration agreement within the meaning of Article II (2) NYC, the Court found that in light of the more-favorable-right provision at Article VII(1) NYC, the requirement of an arbitration agreement signed by both parties could be dispensed with. The Court held that the party seeking enforcement could rely upon an arbitration agreement which complied with a less stringent provision of German law that would ordinarily only apply to domestic arbitration. Pursuant to the German law theory of "kaufmännisches Bestätigungsschreiben", a valid arbitration agreement can be concluded "in accordance with common usage" if a businessman remains silent after having been provided by another businessman with a 'sales confirmation' containing an arbitration clause. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision, holding that the more-favorable-right provision at Article VII(1) NYC permitted the application of a German provision less stringent than Article II NYC. It held that international law supports a broad interpretation of the more-favorable-right rule and an application of recognition-friendly national provisions to foreign arbitral awards. Also with regard to Article V(1)(a) NYC, the Court held that the more-favorable-right provision at Article VII(1) NYC also applies to the effect that there is no need to assess the validity under the law of the country in which the award was rendered when its validity is assessed under the law of the country in which enforcement is sought. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=425&opac_view=6 Attachment (1)
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Country India Court India, High Court of Delhi Date 06 September 2010 Parties National Agricultural Co-operative Marketing Federation of India Ltd. v. Alimenta S.A. Case number FAO (OS) 205/2000 Applicable NYC Provisions VII | VII(1) Source http://www.delhihighcourt.nic.in (website of the Delhi High Court)
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5868&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Rechtbank Dordrecht (District Court of Dordrecht) Date 30 June 2010 Parties Dubai Drydocks v. Defendant Case number 79684 / KG RK 09-85 Applicable NYC Provisions VII | VII(1) Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5958&opac_view=6 Attachment (1)
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Country Slovenia Court Slovenia, Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) Date 16 December 2009 Case number VSRS Sklep Cpg 2/2009 Applicable NYC Provisions II | IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(a) | V(2) | VII Source http://www.sodnapraksa.si (Public information of Slovenia, the Supreme Court of the Republic of Slovenia)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4428&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 01 September 2009 Case number 34 Sch 14/09 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source DIS Summary In 2006, the Parties concluded a sales contract to be governed by the Convention on the International Sale of Goods, the Incoterms of the International Chamber of Commerce and Canadian law, with disputes to be resolved by arbitration at the Stockholm Chamber of Commerce (SCC). A dispute arose and the Buyer commenced arbitration at the SCC and obtained a favorable award from a sole arbitrator in 2008. The Buyer then sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court of Munich) granted enforcement of the award. It reasoned that the Buyer, by supplying a copy of the award certified by counsel, had complied with the less strict formal requirements of German law, which applied in virtue of the more-favorable-right rule under Article VII(1) NYC. German law does not require that the party seeking enforcement to supply the original arbitration agreement or a copy thereof. The Court considered that there were no grounds to refuse enforcement under Article V NYC. In particular, the enforcement of an award of compensation for legal costs did not violate German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=307&opac_view=6 Attachment (1)
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Country Netherlands Court Netherlands, Rechtbank Rotterdam (District Court of Rotterdam) Date 29 July 2009 Parties Plaintiffs v. Ocean International Marketing B.V. and others Case number 194816 / HA ZA 03-925 Applicable NYC Provisions II | VII Source https://www.rechtspraak.nl (official website of the Netherlands judiciary system)
Languages Dutch Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5959&opac_view=6 Attachment (1)
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Country United Kingdom Court England and Wales, Court of Appeal Date 20 July 2009 Parties Dallah Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan Case number 2008/2613 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(1)(e) | VI | VII | VII(1) Source [2009] EWCA Civ 755 | online: BAILII
Languages English Summary Dallah, a Saudi Arabian company, entered into a memorandum of understanding with the Pakistani government regarding housing in Mecca, Saudi Arabia, for Pakistani pilgrims. A Pakistani presidential ordinance established a trust, which entered into an agreement with Dallah. This agreement provided for disputes between Dallah and the trust to be resolved by arbitration under the rules of the International Chamber of Commerce ("ICC"). After the trust had expired and therefore ceased its legal existence, Dallah instituted ICC arbitration in Paris against the Pakistani government’s Ministry of Religious Affairs. In a partial award on jurisdiction, the tribunal sitting in Paris held that the Ministry was bound by the arbitration agreement and that the tribunal accordingly had jurisdiction. It issued another partial award on liability and a final award in favour of Dallah. Dallah sought to enforce the final award in England. The government of Pakistan successfully resisted enforcement in the English High Court. The High Court set aside a previous order granting leave to enforce the award, under section 103(2)(b) of the Arbitration Act 1996 (U.K.) ("the Act") (which directly incorporates and whose wording is equivalent to Article V(1)(a) NYC's provision regarding invalidity of the arbitration agreement). Specifically, enforcement was refused due to the lack of a valid arbitration agreement between the parties under the law of the country where the award was made. Dallah appealed to the Court of Appeal, arguing, inter alia, that section 103(2) of the Act permitted only a limited review of the tribunal's jurisdictional decision. The Court of Appeal dismissed Dallah's appeal. Enforcement of the award was refused under section 103(2)(b) of the Act. The Court of Appeal made four main holdings. First, it affirmed the High Court's holding that an enforcing court need not restrict itself to a limited review of an arbitral tribunal's jurisdictional decision (although the tribunal's reasoning should be considered). The enforcing court was entitled to rehear and reconsider all relevant evidence on the facts, which included issues of foreign law. This conclusion was derived from section 103(2) of the Act (which, as the Court noted, directly incorporates and whose wording is equivalent to Article V(1) NYC), requiring the party resisting enforcement to prove the existence of one of the grounds as a matter of fact. The power of the courts of the seat to set aside awards, referred to in Article V(1)(e) NYC (which directly incorporates and whose wording is equivalent to Article V(1)(e) NYC) did not call for an opposite conclusion. Second, since there was no explicit choice of the law governing the arbitration agreement in this case, the law governing its validity was held to be the law of France, the country where the award was made. The Court ruled that the High Court had correctly applied French law to find that the Pakistani government was not bound by the arbitration agreement. Third, it held that the Pakistani government was not estopped from resisting enforcement in England. The government's solicitors had earlier declared an intent not to challenge the award in France, while noting that a successful challenge would have allowed them to resist enforcement under section 103(2)(f) of the Act. The Court ruled that the fact that an award had not been challenged or had been upheld on challenge in the courts of the arbitral seat did not prevent a party from resisting its enforcement elsewhere. Fourth, the Court refused to enforce the award under any discretion stemming from the word "may" in Article V(1) NYC, given the lack of a valid and binding arbitration agreement between the parties. The Court noted that such discretion may be broader under other circumstances or in other jurisdictions. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=799&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 22 June 2009 Case number 34 Sch 26/08 Applicable NYC Provisions VII | V | VII(1) | V(1)(d) | V(1)(b) Source DIS Summary The Parties entered into an exclusive distribution contract in February 2001, which expired on 31 December 2010. The contract was governed by Spanish law with an arbitration clause for resolution of disputes before the Arbitration Court at the Madrid Chamber of Commerce (MCC), with proceedings in English. The Claimant terminated the contract on the grounds of the Defendant's non-performance and initiated arbitration. The MCC issued an award in the Claimant's favor on 1 February 2007. The Defendant filed an action before the Madrid Court of Appeal to set aside the award, which was denied. The Claimant then sought to have the award enforced in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement, finding that the Claimant had complied with the formal requirements for recognition under German law, which applied in virtue of the more-favorable-right provision at Article VII(1) NYC, by supplying a copy of the arbitral award certified by counsel. The Court considered that the decision of the Madrid Court of Appeal that the award was valid despite having been signed by two of three arbitrators was binding on the enforcing court in Germany. It considered that there were no grounds for denying recognition under Article V(1)(d) or Article V(1)(b) NYC. The fact that Spanish was used in the arbitration (rather than English) did not contravene the Parties' agreement, because they also agreed to the application of the MCC rules which provide for proceedings in Spanish. Nor did the language of the proceedings violate due process, as the Defendant failed to show that this prevented the presentation of its case. 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)) / c. Relationship with article V(1) / §45
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §30
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §58
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=301&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 11 May 2009 Case number 34 Sch 23/08 Applicable NYC Provisions VII | IV | VII(1) Source DIS Summary In October 2005, the Defendant made out a bill of exchange in favor of the Claimant, which was due in December 2005. The Parties concluded an agreement referring disputes relating to the bill to the Arbitration Court of the Czech Chamber of Commerce, to be governed by Czech law. The Defendant paid only part of the debt and the Claimant commenced arbitration. The Defendant alleged that in the course of the proceedings, the Parties agreed to payment by installments. In 2007, a sole arbitrator rendered an award in favor of the Claimant, who sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court Munich) granted enforcement, finding that the Claimant had complied with the formal conditions for recognition and enforcement under German law (which applied in virtue of the more-favorable-right rule under Article VII(1) NYC) by supplying the original arbitral award with a translation. The alleged agreement to pay by installments did not deprive the Claimant of its interest in obtaining a declaration of enforceability in Germany, even if it postponed the date on which payment became due. The date on which the claims awarded in the arbitral award become due is not a condition for the declaration of enforceability. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=298&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 17 December 2008 Case number 34 Sch 18/08 Applicable NYC Provisions VII | VII(1) Source DIS Summary In December 2005, the Claimant concluded a supply contract with Company X by telefax exchange, which included a clause providing for arbitration at Vilnius Court of Commercial Arbitration. Company X failed to pay for certain deliveries, and with the Claimant's permission, subsequently assigned its existing obligations to the Defendant. When the Defendant failed to make further payments, the Claimant initiated arbitral proceedings. The Defendant did not participate in arbitration. The tribunal found mostly in favor of the Claimant, who subsequently sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) München. The Oberlandesgericht München granted enforcement. It ruled that by submitting a certified copy of a non-authenticated award, the Claimant had complied with the formal conditions for enforcement under German law, which applied on the basis of the more-favorable-right provision under Article VII(1) NYC. It further considered German law does not require the party requesting enforcement to supply the arbitration agreement. The Oberlandesgericht noted that the Defendant failed to raise any grounds for non-enforcement under Article V(1) NYC, and considered that there were no grounds justifying non-enforcement by its own initiative under Article V(2) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=295&opac_view=6 Attachment (1)
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Country Austria Court Austria, Oberster Gerichtshof (Supreme Court) Date 03 September 2008 Parties O**** Limited, M**** Corp. v. C**** Limited Case number 3Ob35/08f Applicable NYC Provisions III | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3881&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 10 April 2008 Parties Société C22 v. Société John K. King & Sons Limited Frontier Agriculture Limited Case number 06/15636 Applicable NYC Provisions V | V(2) | V(2)(b) | VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary In an award dated 12 June 2006 rendered in London, the arbitral tribunal ruled in favor of a UK company (King) against a French company (C22). In an order issued on 10 August 2006, the President of the Tribunal de grande instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. Appealing this decision, the opposing party argued that the award was contrary to international public policy pursuant to Article 1502 5° of the Code of Civil Procedure and Article V(2)(b) NYC. In this respect, it claimed that the award was rendered in violation of the principle of impartiality and independence of arbitrators. The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order. It noted that (i) pursuant to Article VII NYC, a party may not be deprived of its right to rely on an award in accordance with, and within the limits of, the laws of the place where enforcement is sought, and (ii) Article 1502 of the Code of Civil Procedure is similar in substance to Article V NYC and leads to similar results with respect to the public policy exception. It ruled that C22, which participated in the arbitral proceedings leading to the award, without making any objection to the composition of the arbitral tribunal, was estopped from requesting that the Cour d'appel de Paris set aside the award on the basis of an irregularity in the composition of the arbitral tribunal, which it had tacitly but necessarily consented to. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=183&opac_view=6 Attachment (1)
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Country France Court France, Cour d'appel de Paris (Court of Appeal of Paris) Date 31 January 2008 Parties Société ivoirienne de raffinage v. Société Teekay Shipping Norway AS et al Case number 06/07787 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Cour d’appel de Paris
Summary An award was rendered in Abidjan, Côte d'Ivoire, on 31 October 2005 in accordance with the OHADA Rules. The Société Ivoirienne de Raffinage brought an action to set aside the award before the Abidjan Court of Appeal (which was still pending at the time the French Courts were seized of and decided this matter). In an order issued on 15 March 2006, the President of the Tribunal de Grande Instance de Paris (First Instance Court of Paris) allowed enforcement of the award in France. The Société Ivoirienne de Raffinage filed an appeal against this order, by which (i) it challenged the jurisdiction of the Tribunal de Grande Instance de Paris, (ii) requested that the proceedings be stayed pending the decision on the setting aside of the award of the Abidjan Court of Appeal, and (iii) claimed that the enforcement order was contrary to international public policy (Article 1502 5° of the Code of Civil Procedure). The Cour d'appel de Paris (Paris Court of Appeal) confirmed the enforcement order. It held that the Tribunal de Grande Instance de Paris is the proper forum to seek an enforcement order of an award rendered abroad (and thus rejected the argument based on Article 1477 of the Code of Civil Procedure, which applies to domestic arbitration). It then rejected the request for a stay of the proceedings by noting that an international award is not anchored in any domestic legal order. As this was an award rendered in the context of the OHADA Treaty, its enforcement would only be subject to rules of the country in which its recognition and enforcement is sought. The Cour d'appel de Paris also held that Article 1502 of the Code of Civil Procedure does not recognize the setting aside of an award in a foreign country to be a ground for refusing enforcement of an award; thus it noted that the pending decision of the Ivorian court will have no effect in France. The Cour d'appel de Paris then dismissed the claim based on a breach of international public policy since the Société Ivoirienne de Raffinage had not explained the arguments on which its appeal was based, while noting that the NYC, to which the Judicial Cooperation Agreement between France and Côte d'Ivoire refers for the recognition and the enforcement of foreign arbitral awards, allows the application of a more favorable domestic law, such as French law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=181&opac_view=6 Attachment (1)
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Country Spain Court Spain, Tribunal Supremo (Supreme Court) Date 14 November 2007 Parties Limber S.A. v. Cutisin A.S. Case number STS 7191/2007 Applicable NYC Provisions I | I(3) | II | II(2) | II(3) | 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=4015&opac_view=6 Attachment (1)
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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)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 14 September 2007 Case number 9 Sch 02/07 Applicable NYC Provisions VII | V | IV | III | V(1)(d) | V(1)(c) | V(2)(b) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe
Languages English Summary The Applicant sought enforcement of an award rendered in Taiwan before the Oberlandesgericht (Higher Regional Court) Karlsruhe. The Respondent opposed enforcement arguing that the award creditor had failed to submit a certified copy and a translation of the award, and that the dispute was not covered by the arbitration agreement. It further contended that the tribunal had not been properly constituted because the nomination of a substitute arbitrator should have been made by the Taiwanese courts rather than the Arbitration Association of the Republic of China in Taiwan. In addition, the Respondent argued that the appointment of three Taiwanese arbitrators violated public policy. The Oberlandesgericht declared the award enforceable finding that it was sufficient that the Applicant had submitted a certified copy of the arbitration award. It stated that an original or a certified copy of the arbitration agreement [sic] and a translation were not required under German law, which was applicable instead of Article IV NYC, pursuant to the more-favorable-right provision at Article VII(1) NYC. The Oberlandesgericht concluded that the application for declaration of enforceability had merit (Article III), since the Respondent was in any event precluded from raising its non-enforcement grounds at this stage since it had an opportunity to raise arguments during the annulment proceedings in Taiwan, but had failed to do so. In this respect, the Oberlandesgericht also noted that it was long accepted in German case law that objections to enforcement could be considered in enforcement proceedings only if a permissible and relevant annulment application was not yet time-barred at the seat of the arbitration. Additionally, the Oberlandesgericht found that although Article V NYC did not contain a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement pursuant to Article VII NYC. Moreover, it found that since Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to domestic annulment proceedings, foreign preclusion rules should equally be given effect to ensure legal certainty. The Oberlandesgericht held that, in any case, the objections to the enforcement application were without merit. It found the arbitral tribunal’s broad interpretation of the arbitration clause convincing, and held that the dispute was covered by the arbitration clause (Article V(1)(c) NYC). In addition, the Oberlandesgericht held that any errors in the constitution of the arbitral tribunal could not justify a refusal of enforcement under Article V(1)(d) NYC, reasoning that even if one assumed that the substitute appointment should have been made by the Taiwanese courts, the Respondent would have to substantiate the extent to which the appointment by the state courts would have led to a different procedural outcome and, in particular, to the appointment of an arbitrator of a different nationality. Finally, the Oberlandesgericht found that the mere fact that the nationality of all three arbitrators was the same as one of the parties did not per se, and without any further concrete evidence, constitute a violation of the principle of neutrality such as to justify a refusal of enforcement based on Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1310&opac_view=6 Attachment (1)
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Country 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)
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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)
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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)
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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)
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Country Germany Court Germany, Oberlandesgericht Celle Date 14 December 2006 Case number 8 Sch 14/05 Applicable NYC Provisions VII | V | IV | II | V(1)(b) | VII(1) | V(1)(a) | IV(2) | V(1)(d) | IV(1)(a) | II(2) | II(1) Source Original decision obtained from the registry of the Oberlandesgericht Celle
Languages English Summary A ship-owner and a charterer negotiated two charter-parties but signed only one. The charter-parties referred to the arbitration clause contained in the GENCON 1994 charter-party template, which provided for arbitration in London. Subsequently, the ship-owner initiated arbitration, claiming a breach of the unsigned charter-party, and obtained a favorable award. The ship-owner applied for enforcement before the Oberlandesgericht (Higher Regional Court) Celle, which was opposed by the charterer, who also sought annulment of the award by the Oberlandesgericht on the grounds that (i) the charter-party was not enforceable, (ii) that the parties had not concluded a valid arbitration agreement and therefore the arbitrator did not have jurisdiction, (iii) that the arbitration had not been conducted in accordance with English law, which, it argued, permitted an arbitrator to assume jurisdiction only when the existence of an arbitration agreement was undisputed between the parties - which it was not - and that the arbitrator’s decision nevertheless to assume jurisdiction violated German public policy, and (iv) that it had not received a request to nominate an arbitrator and had not yet received a copy of the award. The ship-owner replied saying that (i) the arbitrator had held that the unsigned charter-party, and thus the arbitration agreement, had been validly concluded, (ii) that the charterer had not raised any concerns as to the existence of the arbitration agreement during the arbitral proceedings and could not do so now, and (iii) that the arbitration proceedings did not violate any fundamental legal principles of the Federal Republic of Germany. The Oberlandesgericht declared the award enforceable and denied the request for annulment, reasoning that the award had been rendered in England and could therefore only be annulled in England. The Oberlandesgericht found that the ship-owner had fulfilled the requirements for enforcement under Article III NYC as it had supplied a certified copy of the award as per Article IV(1)(a) NYC and a certified translation of the same as per Article IV(2) NYC. The Oberlandesgericht found that pursuant to the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law (Section 1064 (1) and (3) of the German Civil Procedure Code) were applicable, rather than those in Article IV NYC, and German law did not require submission of the original arbitration agreement or a certified copy of the same. It further noted that according to Articles II(1), II(2) and V(1)(a) NYC a written arbitration agreement was required, but based on the more-favorable-right provision at Article VII(1) NYC the less stringent requirements of Section 1031 of the German Civil Procedure Code would apply, whereby “a written document signed by both parties was not mandatorily necessary”. The Oberlandesgericht concluded that the arbitration agreement contained in the annex of the unsigned charter-party met the formal requirements of a valid arbitration agreement. The Oberlandesgericht said that the factual or legal findings of the arbitrator regarding the validity of the arbitration agreement were not binding on it and that enforcement courts were required to make an independent assessment of whether the requirements of Articles II and V NYC had been met. The Oberlandesgericht found that Article V(1)(d) NYC only concerned defenses regarding the “composition of the arbitral authority” or the “arbitral procedure”, and that the question of the validity of the arbitration agreement was a preliminary question that fell under Article V(1)(a) NYC. It reasoned that there was therefore no basis for refusing enforcement under Article V(1)(d) based on the charterer’s argument that under English law arbitrators could only become active if the existence of an arbitration agreement was undisputed between the parties. The Oberlandesgericht found that the charterer’s allegation that they had not received a request to nominate the arbitrator was contradicted by the evidence and therefore Article V(1)(b) NYC was not applicable. It also held that the charterer had not shown that recognition and enforcement of the award would contradict German public policy and that the fact that it had not yet received a copy of the arbitral award did not constitute a violation of German public policy as it was well recognized that an arbitral award could be transmitted during proceedings for its annulment or enforcement. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / a. Domestic law more favourable than article II / §34
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1316&opac_view=6 Attachment (1)
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Country 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)
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