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Germany / 24 March 2015 / Germany, Landgericht Essen (Regional Court of Essen) / N/A / 12 O 37/12
Country Germany Court Germany, Landgericht Essen (Regional Court of Essen) Date 24 March 2015 Parties N/A Case number 12 O 37/12 Applicable NYC Provisions III Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4056&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 22 July 2014 Parties N/A Case number 22/07/2014 Applicable NYC Provisions II | II(1) | II(2) | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(e) | VII | VII(1) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4057&opac_view=2 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 08 May 2014 Parties N/A Case number III ZR 371/12 Applicable NYC Provisions II | II(1) | II(2) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4123&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 26 February 2014 Parties N/A Case number 26/02/2014 Applicable NYC Provisions V | V(1) | V(1)(d) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4124&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 16 January 2014 Parties N/A Case number 16/01/2014 Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(e) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4125&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 23 July 2013 Parties N/A Case number 8 Sch 2/12 Applicable NYC Provisions IV | V | V(1) | V(1)(e) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4058&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 March 2013 Parties N/A Case number 07/03/2013 Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4127&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 31 January 2013 Parties N/A Case number 18 U 48/12 Applicable NYC Provisions II Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4059&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 06 July 2012 Parties N/A Case number 06/07/2012 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(d) | V(2) | V(2)(b) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4126&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 04 January 2012 Case number 9 Sch 02/ 09 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe. Languages English Summary The Claimant had obtained a favourable arbitration award following arbitration proceedings at the International Chamber of Commerce in San Diego, which granted it certain insolvency creditor claims against the Respondent. The Claimant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Karlsruhe, which the Respondent opposed, alleging that the Claimant’s insolvency claims were not arbitrable and that the award violated public policy due to, inter alia, the arbitral tribunal’s alleged erroneous interpretation and application of the law, the conduct of oral hearings at a place different from the seat of the arbitration, the rendering of the arbitral award beyond the regular six-month time limit under Article 24(2) ICC Rules, the alleged sleeping of one of the arbitrators during the arbitration, and the allocation of the entire costs of the arbitration to the Respondent. The Oberlandesgericht dismissed all of the Respondent’s objections and granted enforcement, reasoning that the Respondent could have raised the arguments in the annulment proceedings under the United States Federal Arbitration Act, but had not done so within the applicable time limits, and was now precluded from raising them in the present enforcement proceedings. The Court found that, while Article V NYC did not contain such a preclusion rule, such a rule would be applicable based on German law since Article VII(1) NYC allowed the application of domestic court practice favorable to the recognition of foreign arbitral awards. The Oberlandesgericht also found that, in any event, the Respondent’s objections against enforcement were unfounded. It considered that disputes regarding rights of an insolvency creditor were capable of being resolved by arbitration and also that the award did not violate German public policy under Article V(2)(b) NYC by confirming insolvency claims which had previously been filed in the insolvency administrator’s list of claims, but had thereafter been listed as contested. The Oberlandesgericht noted that the Respondent had failed to recognize that public policy violations regarding international arbitration awards were to be assessed exclusively on the standard of international public policy and that, accordingly, a refusal of enforcement could be justified on public policy grounds only where the arbitral proceedings showed a grave defect that affected the basis of public and economic life in Germany. It concluded that this was not the case for any of the public policy violations raised by the Respondent. In addition, in relation to the alleged lack of attention of one of the arbitrators, the Oberlandesgericht made clear that the Respondent would have had to raise this issue in the arbitration. Finally, as regards the arbitral tribunal’s alleged misapplication of German law, the Oberlandesgericht stated that it could not consider this aspect due to the prohibition to review the award on the merits. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1305&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 14 November 2011 Case number 34 Sch 10/11 Applicable NYC Provisions V | V(2)(b) | V(1)(d) | V(1)(b) Languages English Summary Two German companies entered into a settlement agreement regarding a corporate acquisition operation. The settlement agreement provided for arbitration in Zurich under the DIS (German Institution of Arbitration) Rules. The Claimants initiated proceedings claiming for damages for breach of the settlement agreement. The Defendant argued that the damages were contractually limited to the value of a property which was lower than the amount claimed for. The arbitral tribunal granted the full amount of damages finding that the value was assessed by the Claimants' expert and had served as a basis to the Parties' settlement negotiations. Also considering other factual elements, the arbitral tribunal held that the Defendant's expert report which came to a lower value was not convincing in this regard. The Claimants sought enforcement in Germany. The Defendant opposed the application of enforcement arguing a violation of its right to be heard by the arbitral tribunal. The Defendant asserted that the arbitral tribunal which lacked proper expert knowledge, had violated its right to be heard by following the Claimants' expert valuation without itself assessing the question by application of a proper valuation method, without appointing an expert and without adressing the Defendant's expert report. The Claimants submitted, on the contrary, that the arbitral tribunal was not obliged to appoint an expert as the German Civil Procedure Code which would have required such an appointment does not apply but the DIS Rules the parties had agreed on. The Claimants further asserted that the tribunal's assessment of the evidence was correct and would not amount to a violation of German "ordre public", in any event. The Oberlandesgericht (Higher Regional Court) München declared the award enforceable. It held that the right to be heard as a basic principle laid down in the German Constitution (Article 103(1) Grundgesetz) also applies to arbitration. Therefore, the arbitral tribunal needs to consider the Parties' position and their applications on the admission of evidence concerning facts relevant to the case. With regard to the alleged violation of Articles V(1)(b), V(2)(b) and V(1)(d) NYC, the Oberlandesgericht found that in the case at hand, the arbitral tribunal did consider the question of the property's value, and discussed in detail which expert's view should prevail. The Oberlandesgericht further found that the arbitral tribunal had the right to proceed the way it did in the framework of the DIS Rules. Thus, the tribunal did not violate the Defendant's right to be heard. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=536&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 11 July 2011 Case number 34 Sch 15/10 Applicable NYC Provisions V | V(1)(a) Languages English Summary A Ukranian and a German company entered into a sales agreement containing an arbitration clause providing for arbitration before the International Court of Arbitration of the Zurich Chamber of Commerce. Shortly therafter, the parties entered into a supplementary agreement providing for arbitration before the Ukranian Chamber of Industry and Commerce in Kiev. The Ukranian party obtained an award against the German party before that tribunal in Kiev and sought enforcement thereof before the Oberlandesgericht (Higher Regional Court) München. The German Defendant argued that the second arbitration agreement was invalid as it constituted a mere collusion ("Scheingeschäft"). The German Defendant argued that it only agreed to this provision as the Ukranian party had pretended that it was a pro forma requirement of the Ukranian customs authority in order to be able to continue to export the goods. The Claimant, for its part, countered that the supplementary agreement had been entered into for cost reasons. The Oberlandesgericht granted the enforcement. It held that the Defendant was certainly already barred from invoking the invalidity of the agreement as it had not done so before the arbitral tribunal. Moreover, the Court did not find the agreement to constitute a collusion under Ukranian law applicable to that question. In particular, it held that if it is true that the party seeking enforcement always bears the burden of proof with respect to the existence of a valid arbitration agreement, the opposing party alleging that an agreement is a collusion yet bears the burden of proof for that allegation. The Court held that the Respondent has not satisfied that burden of proof. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=538&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Saarbrücken Date 30 May 2011 Case number 4 Sch 03/10 Applicable NYC Provisions V | V(2)(b) | V(1)(a) Languages English Summary A sales contract on a stallion provided for arbitration at the International Chamber of Commerce (ICC). Following a dispute on the stallion's ability to serve as a dressage and breeding horse, the Buyer initiated ICC proceedings, aimed at annulling the contract and obtaining damages based on alleged deficiencies of the stallion. However, an award was rendered in favor of the Vendor ordering the Buyer to pay the outstanding part of the sales price. The vendor sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Saarbrücken. In order to oppose enforcement, the Buyer asserted that the sales price agreed upon had been too high in light of the stallion's actual deficiencie and requested the Court to find that this price gap constituted a violation of the domestic public order which made the contract void in accordance to § 138 BGB (German Civil Code). The Buyer further asserted that since the sales contract was void the arbitration agreement was void. The Oberlandesgericht Saarbrücken granted enforcement. The Court held that with regard to Article V NYC, there were no reasons in the case at hand to refuse recognition and enforcement of the award. First, with regard to Article V(2)(b) NYC, the Court started out by recalling that a party alleging the invalidity of the arbitration agreement is not required to do so during the arbitration proceedings. A proven violation of German domestic public order would be such a case. However, the Court said, the case at bar is particular because the Buyer based the alleged violation of the domestic public order and the invalidity of the arbitration agreement on a substantive objection: the price gap the Buyer was aware of already during the arbitration proceedings. However, substantive objections are not admissible if the causes on which they are based already existed during the arbitration proceedings. Thus, the Buyer was barred from raising this objection. The Court further reasoned that even if one were to accept the objection as being in principle admissible, the result would not be any different. This is so, said the Court, because the prohibition of reviewing the substance of the case only allows a limited control of the accuracy of the award. Therefore, the public order exception applies only to cases where fundamental and indispensable values of the German legal order needs to be protected. If § 138 BGB as such is certainly part of German domestic public order as it annuls contracts that violate public morality, this cannot mean however that the entire domestic case law on § 138 BGB with all its variations is also part of the domestic public order. This would have the undesirable result that foreign judgments and awards granting claims from a contract which is void according to § 138 BGB are never recognizable and enforceable. Yet, German legal order has to accept that foreign legal orders set less strict rules to the parties' price determination. Thus, the price determination by the parties is not part of the German domestic public order. Finally, the Court found that even though it had accepted the argument, the Buyer was unable to proof its case pursuant to the Danish law the Court found applicable in accordance with the German rules of private international law. Second, with regard to Article V(1)(a) NYC, the Court did not accept the Buyer's argument pursuant to which there was no valid arbitration agreement. It held that since the sales contract was not void. Even more, said the Court, the invalidity of the main contract has no effect whatsoever on the validity of the arbitration agreement. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=544&opac_view=2 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=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Naumburg (Higher Regional Court of Naumburg) Date 04 March 2011 Parties N/A Case number 10 Sch 4/10 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(c) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4138&opac_view=2 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1306&opac_view=2 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=2 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1304&opac_view=2 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 16 December 2010 Case number III ZB 100/09 Applicable NYC Provisions V | V(1)(a) Languages English Summary The Claimant sought recognition and enforcement of an award rendered in its favor in France by the Chambre Arbitrale Internationale pour les Fruits et Légumes (CAIFL). While the Defendant alleged the absence of an arbitration agreement during the proceedings, it did not avail itself of the appeal process in accordance with the Parties' contract, nor did it bring an action to set aside the award in the French courts. The Oberlandesgericht München (Higher Regional Court Munich) refused to declare the award enforceable on the grounds that there was no written arbitration agreement. The Claimant appealed that decision. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision of the Oberlandesgericht. It held that the case law of the Bundesgerichtshof pertaining to the preclusion of pleas not raised before the tribunals or courts of the country in which the award was rendered no longer applied after the 1998 reform to German arbitration law. Therefore, even though the Defendant did not take recourse before the appellate body of the CAIFL or the French courts, it was not precluded from arguing that the tribunal lacked competence. The Court found that the Defendant was not in bad faith, and considered that contradictory behavior is abusive only when the other party has special confidence in that behavior or where circumstances make the behavior appear to be contrary to good faith. The mere fact that a party takes recourse in Germany without having sought to set aside the award abroad does not amount to contradictory behavior. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=517&opac_view=2 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=425&opac_view=2 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 08 June 2010 Case number XI ZR 349/08 Applicable NYC Provisions II | II(2) Source BGH Languages English Summary In this complex case, the German Claimants entered into service agreements with a New Jersey broker via the latter's German agent. A multitude of forms were sent by that broker to the German claimants, some of which contained (contradictory) arbitration agreements, and none of which yet had been signed by both Parties. The dispute went through all instances in Germany. The Bundesgerichtshof (Federal Supreme Court) held, inter alia, that arbitration clauses regarding disputes related to broker activities are not binding under German law, unless both parties are businessmen. It further held that pursuant to the German rules of private international law, arbitration clauses contained in contracts concluded between German consumers and foreign brokers are to be assessed under German law and therefore must meet the formal requirements of § 1031(5) of the German Code of Civil Procedure (requirement of, inter alia, a document manually signed by the consumer). The Bundesgerichtshof considered that a certain number of factual assessments still needed to be carried out before a final finding was possible in this case and sent the case back to the Oberlandesgericht (Higher Regional Court) Düsseldorf for reassessment. The Bundesgerichtshof added that it confirmed the view previously expressed by the Oberlandesgericht that under German law, a foreign broker - together with a German broker - will be held to have deliberately inflicted intentional damage on German consumers/investors, thereby offending good morality, when the foreign broker consciously and blatantly grants the German broker full and uncontrolled access to foreign stock exchanges without previously controlling the latter's business plan. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=524&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 15 December 2009 Case number I-4 Sch 10/09 Applicable NYC Provisions V | IV | V(1)(b) | V(2)(b) | IV(1)(b) Source DIS Summary The Parties' U.S. parent company concluded a sales contract in 2003, which contained an arbitration clause. The Claimant assigned all rights under the contract in 2006. In 2008, the Claimant commenced arbitration before a sole arbitrator. The Defendant participated, but informed the sole arbitrator that it would not attend the hearing due to financial difficulties. The arbitrator rendered an award in 2009 in the Claimant's favor. The Oberlandesgericht (Higher Regional Court) Düsseldorf hold that the award was enforceable. It reasoned that the Claimant had supplied documents that complied with the less strict formal conditions of German law for the recognition of a foreign arbitral award, which applied in virtue of the more-favorable-right provision at Article VII(1) NYC. The Court reasoned that an award was valid and final under the applicable American Arbitration Association (AAA) rules, and that this condition must be examined by the Court of its own initiative, pursuant to German law. The fact that the Defendant did not attend the hearing did not violate due process or public policy, since it had expressly informed the arbitrator that it would not attend and was fully informed of the proceedings. The applicable AAA Rules provided that an award did not have to contain reasons, and this possibility does not violate basic principles of German law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=306&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 12 October 2009 Case number 34 Sch 20/08 Applicable NYC Provisions II | II(2) Source DIS Summary A dispute arose over an order under a sales contract, which referred to the Buyer's General Conditions of Contract (GCC), which provided for jurisdiction of a state court. The English version of the Seller's GCC provided for resolution of disputes by the Stockholm Chamber of Commerce, while the Swedish version provided for the jurisdiction of a Swedish arbitral tribunal. In 2007, the Seller commenced arbitration at the SCC seeking damages for breach of contract. The German Buyer objected to the jurisdiction of the SCC. The SCC rendered an award in favor of the Seller in June 2008, finding that the Parties had concluded during the course of two telephone conversations a valid contract, which included the arbitration clause in two telephone conversations. The seller sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court Munich) refused to enforce the award, finding that the Claimant had failed to prove the existence of an arbitration agreement, and that it was not bound by the findings of the arbitral tribunal in this regard. The Oberlandesgericht re-examined the evidence and concluded that no agreement had been concluded, either orally or through the sending of a confirmation order (which substantially differed from the original order). The Oberlandesgericht considered that the Defendant's objection was not precluded because it had failed to contest the award in Sweden. It reasoned that a party that does not submit to the jurisdiction of the tribunal cannot be expected to commence setting aside proceedings in the country where the award was rendered. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=304&opac_view=2 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=307&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 27 August 2009 Case number 26 SchH 03/09 Applicable NYC Provisions II | V | V(2)(b) | V(1)(d) | V(1)(b) | II(2) Source DIS Summary The Parties entered into a sales contract in October 2006. In 2007, the employees of both Parties discussed further deliveries under the contract. The Claimant sent a purchase confirmation (providing for resolution of disputes by arbitration) and a signed contract to the Defendant, which explained in more detail the arbitration clause and stated that it would be deemed valid if not returned within 15 days. The Defendant did not sign the contract and informed the Claimant that it would not make further deliveries. The Claimant initiated arbitration at International Cotton Association (ICA) and obtained a favorable award in 2008. The Defendant appealed unsuccessfully at ICA. The Claimant then sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement. It reasoned that the arbitration agreement, thought not “in writing” for the purposes of the NYC, was valid under the formal requirements of German law, which applies pursuant to the more-favorable-right provision at Article VII(1) NYC. It considered that there was no procedural defect justifying non-recognition under Article V(1)(d), as the Defendant was permitted to nominate its arbitrator from an ICA list. Nor was there a violation of due process that could constitute grounds for non-enforcement under either Article V(1)(b) or V(2)(b) NYC. According to the Court, due process is guaranteed when each party can express its opinion concerning the factual and legal aspects of its case, and the tribunal discusses and determines all of the parties' relevant arguments. On the other hand, due process is not violated when a tribunal does not examine all details of the Parties' arguments in the reasons for its decision, or refuses to grant a request for an oral hearing. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=305&opac_view=2 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 02 July 2009 Case number IX ZR 152/06 Applicable NYC Provisions V Source DIS Summary An award was rendered in the Claimant's favour in 2002 and confirmed in 2003 by the Superior Court of California. The California Court adopted the factual findings and the legal considerations underlying the arbitral award, thus incorporating the award in its judgment. The Claimant's application for enforcement was granted by the Landgericht (Regional Court) Berlin in 2005. The Kammergericht (Higher Regional Court Berlin) affirmed the decision in June 2006, reasoning that the confirmation decision adopted the factual findings and legal conclusions of the award and made them their own. The Kammergericht Berlin upheld the doctrine of "double exequatur", whereby an applicant is granted the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that the decision was not a declaration of enforceability but rather an independent order and could be declared enforceable in its own right. The Bundesgerichtshof (Federal Supreme Court) reversed the decision of Kammergericht , abolishing the doctrine of "double exequatur" put forth in two decisions rendered in 1984 (see links below). The Bundesgerichtshof held that the double exequatur of judgments is not permissible under either German procedural law or unified European law of civil procedure since it could allow an applicant to circumvent objections to enforcement based on Article V NYC. According to the Bundesgerichtshof, should a country which is Party to the NYC apply the doctrine of merger, such application should be limited to the territory of that country. affirms : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=302&opac_view=2 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=301&opac_view=2 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 11 June 2009 Case number 20 Sch 04/07 Applicable NYC Provisions V Source DIS Summary In 1981, the Parties concluded an investment contract for the construction of an observatory, which included an agreement for the resolution of disputes by three arbitrators. A war broke out in State X and the observatory was destroyed. At the end of the war, Construction Company Z decided not to resume work. The Parties thereafter signed an Acknowledgement of Debt. State X did not meet its obligations and Company Z initiated arbitration, obtaining favorable award in 2007. Company Z then sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) granted enforcement. It reasoned that there were no public policy or arbitrability grounds to deny enforcement which could be analysed at its own initiative. This would only be the case if the subject matter of the dispute were not capable of settlement by arbitration under German law or the recognition or enforcement of the arbitral award would be contrary to public policy. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=300&opac_view=2 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 05 June 2009 Case number 14 Sch 03/09 Applicable NYC Provisions V | V(1)(a) Languages English Summary A German company ordered goods from a subsidiary of a Swedish company. The Swedish parent company delivered the goods sending along the General Conditions which contained an arbitration clause of the Stockholm Chamber of Commerce. Upon a payment refusal by the German company for deficiencies, the Swedish parent company initiated arbitration proceedings. An award was rendered in its favor. Recognition and enforcement in Germany was sought. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main refused to grant recognition and enforcement. It held that under the applicable Swedish law there was no valid arbitration agreement between the Swedish parent company and the German company. All the orders had been passed by the German buyer with the German subsidiary of the Swedish company. There was not sufficient proof that this subsidiary company had merely acted as an agent of its parent company. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=525&opac_view=2 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=2 Attachment (1)
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