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Germany / 02 July 2009 / Bundesgerichtshof / IX ZR 152/06
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=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, 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. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=300&opac_view=6 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=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 27 February 2009 Case number 34 Sch 19/08 Applicable NYC Provisions V Source DIS Summary The Defendant made use of the Claimant's transportation services but failed to pay for them. The Defendant issued an acknowledgement of debt to the Claimant providing the application of Czech law and for all disputes to be referred to arbitration in Brno. The Defendant failed to pay and the Claimant initiated arbitration proceedings, obtaining a favorable award from a sole arbitrator. The Claimant then sought recognition in Germany. The Oberlandesgericht München (Higher Regional Court Munich) granted enforcement, finding that the Claimant had complied with the formal conditions for seeking recognition under German law (which applied in virtue of the most-favored-right principle at Article VII(1) NYC), as it supplied the copy of the arbitral award, certified by a Czech city district council but not authenticated as required by the NYC. Since German law does not require the party requesting enforcement to supply the arbitration agreement, the form in which it was provided by the Claimant (a simple copy) was irrelevant. The authenticity of the award was undisputed. The Oberlandesgericht found that no grounds for non-enforcement under Article V(1) NYC needed be examined because the Defendant did not raise them. It further considered that there were no grounds for non-enforcement under Article V(2) NYC which it had to examine on its own initiative. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=297&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 19 January 2009 Case number 34 Sch 04/08 Applicable NYC Provisions II | II(2) Source DIS Summary The Parties concluded a manufacturing contract. According to Clause 10.2 thereto, amendments could only be valid if set out in writing and signed by both Parties. The contract further called for application of Ukrainian law and the resolution of disputes by arbitration at the Ukrainian Chamber of Commerce and Industry (ICAC). The Defendant allegedly failed to pay an invoice and the Claimant initiated arbitration, supplying the tribunal with the contract as well as copies of three contractual amendments. The Defendant objected to the jurisdiction of the tribunal on the grounds that it could not be bound by the actions of its employee who authorized the original contract, and that his signatures on the contractual modifications were forgeries. A sole arbitrator assumed jurisdiction over the dispute and rendered an award in the Claimant's favor. The Oberlandesgericht München (Higher Regional Court Munich) denied enforcement. It held that a Party seeking recognition and enforcement has the burden of proving the existence of a valid arbitration agreement. In this case, the Claimant had failed to discharge this burden as it provided no evidence to rebut the Defendant's argument that the contract had not been validly modified. The Oberlandesgericht considered that it was not bound by the factual and legal determinations of the arbitrator in respect of the existence of a valid arbitration clause. In any event, in this case the arbitrator had not found that the Defendant had accepted the modifications. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=296&opac_view=6 Attachment (1)
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Stefan Kröll / Germany: the Berlin Kammergericht rejects defence for failure to challenge award in place of arbitration / 12(1) International Arbitration Law Review 7 (2009) - 2009
Author(s) Stefan Kröll Source 12(1) International Arbitration Law Review 7 (2009) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Germany Worldcat Number Worldcat : 818994030 
ISBN 3-452-24909-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3023&opac_view=6
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 Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 28 November 2008 Case number 25 Sch 09/08 Applicable NYC Provisions V | V(2)(b) | V(1)(e) | V(1)(c) | V(1)(b) Summary In 2000, the Parties concluded a contract setting out the framework for their future business relationship, which provided for the application of Swiss law and the conclusion of separate supply contracts. The contract was amended in 2004, and in 2006 a clause was added providing for arbitration of disputes in Zurich at the Swiss Chambers of Commerce. The Parties concluded separate supply contracts on different dates containing separate payment provisions, but which all provided for the application of Russian law and for arbitration in Moscow under the Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC). A dispute arose in respect of the framework contract and was referred to arbitration in Zurich. An award was rendered in favor of the Claimant and later affirmed by the Swiss Federal Supreme Court. Disputes also arose in respect of four supply agreements, and arbitration was initiated in Moscow. On 17 December 2007, an arbitral tribunal issued four awards in favor of the Claimant, who sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement of the Russian awards by four identical decisions. It found that the Defendant was likely precluded from raising grounds for refusal under Article V(1)(e) NYC because it had failed to commence an action for annulment in Russia. This issue remained open, however, because the Defendant had failed to prove any such grounds. For this reason, no decision on preclusion under Article V(1) NYC was necessary. The Court further found that there were no grounds for non-recognition under Article V(1) NYC. The awards were final and binding in light of the application of the ICAC Rules and the fact that time limit for seeking annulment had expired. The Russian arbitral tribunal had proper jurisdiction, as the supply contracts and framework contract were separate and distinct, and therefore there were no grounds for non-refusal under Article V(1)(c). There was no violation of due process that could justify non-recognition under Article V(1)(b), as the ICAC rules provide for proceedings in Russian. The Oberlandesgericht further found that there were no grounds for non-recognition under Article V(2)(b) NYC. The arbitral tribunal could decide on jurisdiction together with merits under the ICAC rules and under German law, and the Defendant did not prove the alleged bias of one of the arbitrators. It further considered that the arbitral tribunal was permitted to deny the Defendant's request for set-off under the ICAC Rules. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=294&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 24 October 2008 Case number 26 Sch 03/08 Applicable NYC Provisions I Source DIS Summary By a contract dated February 2006, the Claimant agreed to supply aluminium castings to the Defendant. The Contract provided for arbitration at the International Commercial Arbitration Court (ICAC) at the Ukrainian Chamber of Commerce and Industry. The Defendant failed to pay for certain supplies, and the Claimant commenced arbitration proceedings, obtaining a favorable award and seeking enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement of the main part of the award. It reasoned that the award was based on a valid arbitration agreement in writing within the meaning of the NYC. The Claimant had complied with the conditions for requesting enforcement and the Defendant did not rely on any grounds for requesting refusal. The Court found the cost award unenforceable on the grounds that arbitrators are in principle prohibited from determining their own costs and fees (except when determined before the arbitration by agreement between the Parties and the tribunal, which was not the case here). Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=292&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 16 October 2008 Case number 26 Sch 13/08 Applicable NYC Provisions V | V(2)(b) Source DIS Summary By contract dated 6 July 2004, the Buyer purchased shares from the Seller. The Parties' contract contained a non-competition clause and a clause providing for arbitration in Switzerland under the Rules of the International Chamber of Commerce (ICC). In 2005, the Buyer initiated ICC proceedings against the Seller for breach of the contract's non-competition provisions. In 2008, an ICC tribunal rendered an award in favor of the Buyer, directing the Seller to pay damages for market disturbance but dismissing the Buyer's request for a seek-and-desist order because the three-year time limit in the non-competition clause had expired. The Buyer sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement, dismissing the Seller's argument that the award could not be granted a declaration of enforceability. It reasoned that the only requirement for enforcement under the NYC is that the award is binding. This was the case here, since under the ICC Rules an award rendered in ICC arbitration is final and binding on the parties. The Court dismissed the Defendant's argument that enforcement would violate German public policy. Even if the Defendant could prove that damages had been awarded arbitrarily, this would not amount to a violation of public policy. If considered that the tribunal's decision on damages was correct under German law and the the applicable Swiss law and was not contradictory or arbitrary. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=291&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 06 August 2008 Case number 11 Sch 02/08 Applicable NYC Provisions V | V(1)(d) Source OLG Dresden Summary On 30 October 2007, an arbitral tribunal in Norway rendered an award in favor of the Claimant. The Defendant commenced an action for annulment of the award in a Norwegian Court of First Instance. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Dresden granted enforcement. It found that there were no grounds for non-enforcement under Article V(1) NYC. It reasoned that the alleged bias of President (under Article V(1)(d) NYC) had to be examined according to Norwegian law, which is equivalent with German law in this regard. The Court rejected the Defendant's claim that the award was invalid because it was rendered after the six-month time limit provided in the applicable arbitration rules, on the grounds this was not a mandatory rule whose non-recognition could invalidate the award. The Defendant had not contested the arbitral tribunal's announcement at the hearing that the award would be rendered after the six-month time limit. The Court further held that the Defendant's contention that the President was biased (which would have been a ground for non-enforcement under Article V(1)(d) NYC) was to be decided according to Norwegian law. The Court again considered that the relevant norm corresponded to German law, and found no again bias in this case. The Court also found it persuasive that there had been no annulment of the award in the country of rendition and none was to be expected. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=290&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 16 June 2008 Case number 16 Sch 02/07 Applicable NYC Provisions V | VI Source DIS Summary The Parties concluded a framework supply contract in 1996 containing a clause for settlement of disputes by either arbitration in Denmark or before Danish courts. A dispute arose and the Claimant commenced arbitral proceedings. An award was rendered in 2007 granting each Party its claim, with the difference between the claims in the Claimant's favor. The Defendant sought annulment in Denmark, which was denied at First Instance. The Defendant appealed the First Instance decision, which was pending at the time the Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement, finding that the enforcement of the award would not violate public policy because the Defendant had been granted the opportunity to have the award reviewed by a Danish court. The Court exercised its discretion not to stay proceedings pending the Defendant's appeal in Denmark against the decision of the Danish court, noting that the First Instance annulment action had already been decided in the Claimant's favor. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=289&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 17 April 2008 Case number III ZB 97/06 Applicable NYC Provisions V | V(1)(e) Source BGH Summary A petroleum field licensing contract provided for International Chamber of Commerce arbitration in Copenhagen. The Claimant sought damages for breach of contract and obtained a favorable award. The Kammergericht (Higher Regional Court Berlin) granted enforcement of that award, and the Defendant brought an application for review by the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof set aside the decision of the Kammergericht on the basis that Defendant was precluded from raising grounds to refuse enforcement in Germany, since it had failed to request the setting aside of the award in its country of origin. The Bundesgerichtshof held that although the principle of good faith - and thus the notion of abuse of rights in the case of contradictory behavior ("venire contra factum proprium") - also applied in international arbitration, not every contradictory behavior was to be considered abusive. A party's behavior could only be judged an abuse of rights if the behavior of a party created legitimate expectations for the other party or additional contributory circumstances were in evidence. The Bundesgerichtshof held that the conscious decision not to file a request to set aside an arbitral award in the country of origin could not be understood to be a waiver of all other grounds for refusing enforcement in other countries pursuant to Article V NYC. Thus, the failure to request the setting aside of the arbitral award in the country of origin did not amount to abusive contradictory behavior in the sense of an abuse of rights. reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=286&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 17 April 2008 Case number 20 Sch 02/08 Applicable NYC Provisions V | V(2)(b) | V(1)(b) Source DIS Summary The Parties concluded a supply contact in 2004 containing an clause referring disputes to arbitration at the International Commercial Arbitration Court (ICAC) in the Ukraine. The Claimant commenced arbitral proceedings. The ICAC Secretariat subsequently sent the Statement of Claim, the ICAC Rules and a list of possible arbitrators to the Defendant by registered letter, which was not collected and returned to sender. A subsequent registered letter containing an invitation for the Defendant to attend the hearing was also returned to sender. The tribunal rendered an award in the Claimant's favor and sent it to the Defendant by registered letter, which was not collected. The Claimant's lawyer then sent the award to the Defendant, and sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) granted enforcement, finding that the Defendant was precluded from relying on grounds for non-enforcement since it had not raised them in annulment proceedings in the Ukraine within the three-month time limit set by Ukrainian law. The preclusion (Präklusion) provision in respect of domestic awards in Germany applied to the enforcement of foreign awards, even if there is no equivalent provision in the NYC. The Court considered that there had been no violation of due process justifying non-recognition under Article V(1)(b) NYC, as "assumptions of communication" [Zustellungsfiktionen] suffice for proper summons. The Court further found that there had been no violation of procedural due process within the meaning of Article V(2)(b) NYC, because under Ukrainian arbitration law, a registered letter is deemed to have been duly delivered to the defendant in an arbitration. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=287&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 06 March 2008 Parties N/A Case number I-6 U 109/07 Applicable NYC Provisions II | V | V(1) | V(1)(a) Source Languages German affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4063&opac_view=6 Attachment (1)
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Author(s) Wolfgang Kühn Source 25(6) Journal of International Arbitration 743 (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Germany Worldcat Number Worldcat : 775295408 ISBN 3-452-24909-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3022&opac_view=6 Attachment (1)
External ResourceExternal Resource
Author(s) Norbert Horn Source SchiedsVz 209 (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Germany Worldcat Number Worldcat : 609931526 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4208&opac_view=6
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 December 2007 Case number 11 Sch 08/07 Applicable NYC Provisions V | V(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Dresden. Languages English Summary The Netherlands-based subsidiary of the US fast food chain “Subway” as Franchisor, and a German Franchisee entered into a contract for the operation of a Subway branch in Germany. The franchise contract was based on the Franchisor’s multi-purpose standard form contract which was governed by the law of Liechtenstein and provided for arbitration by sole arbitrator, under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), with oral hearings to be held in New York, administered by an arbitration institution, such as the International Centre for Dispute Resolution. A dispute arose and the Franchisor initiated arbitration proceedings before the American Dispute Resolution Center in Glastonbury, New York, and obtained a favourable arbitral award which it sought to enforce in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. 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 upon, 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=1303&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 Germany Court Germany, Oberlandesgericht Thüringen Date 08 August 2007 Case number 4 Sch 03/06 Applicable NYC Provisions V | V(1)(b) | V(2)(b) Source Original decision obtained from the registry of the Oberlandesgericht Thüringen Languages English Summary A Japanese company and two German companies entered into agreements allowing the German companies to use certain glass production technologies of the Japanese company and also regulating the three companies’ joint development of certain new technologies. The Japanese company subsequently initiated arbitration proceedings in Zurich, under the rules of the International Chamber of Commerce (“ICC”), alleging that the German companies had made unauthorized use of the Japanese companies’ know-how. The arbitral tribunal issued, inter alia, an interim award which was partly in favour of the Japanese company and partly in favour of the German companies. The German companies sought, unsuccessfully, to annul the interim award before the Schweizer Bundesgericht (Swiss Federal Supreme Court), alleging that the interim award violated public policy. Subsequently, the parties turned to the Oberlandesgericht (Higher Regional Court) Thüringen for the recognition and enforcement of those parts of the interim award which were favourable to each. With respect to the portions favourable to the Japanese company, the German companies opposed enforcement, contending that the relevant portions of the interim award violated public policy since the arbitral tribunal (i) had not considered the German companies’ substantive defences, or had considered them insufficiently at best, and (ii) had not examined, in sufficient detail, the possible violation of Article 81(2) EC in connection with German competition law. The Oberlandesgericht declared the interim award enforceable. It clarified that the interim award was capable of being recognized and enforced since it contained binding determinations on the merits of the dispute and not just decisions on procedural questions which would not be capable of recognition and enforcement. The Oberlandesgericht also rejected the German companies’ objection under Article V(2)(b) NYC. It first noted that under the NYC foreign arbitral awards could generally not be reviewed on the merits, and that potential errors in a foreign arbitral award were generally to be accepted, as was the case in relation to errors in a foreign court judgment. According to the Oberlandesgericht, recognition and enforcement proceedings were only meant to prevent misapplication of arbitrators’ powers, and not to relegate arbitral tribunals to mere preliminary decision-makers. If a state allowed arbitration proceedings, it must also be willing to accept, short of a violation of public policy, arbitration awards which might violate mandatory law. The Oberlandesgericht clarified that not all provisions of mandatory law constituted public policy, rather, public policy comprised only those provisions of mandatory law which affected the foundations of public and economic life and basic ideas of justice, including basic rights under the German Constitution, good morals, all fundamental principles of German law, and basic guarantees of procedural justice, such as the right to be heard. The Oberlandesgericht found that the German companies had been accorded the right to be heard to a sufficient degree, as stated by the Schweizer Bundesgericht in its decision denying annulment. The Oberlandesgericht found that it could use the finding of the Schweizer Bundesgericht on on this issue since the scope and content of the right to be heard were identical under Swiss and German law. The Oberlandesgericht further stated that the Schweizer Bundesgericht’s conclusions were generally binding on the Oberlandesgericht and that it was not the function of the Oberlandesgericht to thwart them as long as they were not obviously false or deficient. Moreover, the Oberlandesgericht stated that the German companies’ allegations of a violation of EU competition law did not fall under public policy within the meaning of Article V NYC. It agreed with the arbitral tribunal that the license agreement between the parties did not fall within the ambit of EU competition law and did not, moreover, limit competition. The Oberlandesgericht finally noted that the arbitral tribunal’s findings in this respect were to be accepted and were not subject to a comprehensive review in light of the prohibition of a review on the merits. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1311&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 31 May 2007 Case number 8 Sch 06/06 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | IV(2) | IV(1)(a) Source Original decision obtained from the registry of the Oberlandesgericht Celle.
Languages English Summary The Parties – a German Licensee and a Finnish Licensor – concluded a License Agreement which provided for arbitration in Finland. The Licensee terminated the agreement and filed claims against the Licensor before the Landgericht (Regional Court) Hamburg. The Landgericht declined jurisdiction on the ground that the License Agreement contained an arbitration clause. The Licensee subsequently initiated arbitration proceedings in Finland. The arbitral tribunal dismissed the Licensee’s claims and granted the Licensor’s counterclaims. The Licensor sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Celle. The Licensee objected to the enforcement arguing, inter alia, that the parties’ business relationship was merely based on an implicit oral agreement and that the License Agreement, including the arbitration clause, existed only in draft form so that the Licensor was incapable of providing the original arbitration agreement as required under Article IV(1)(b) NYC. In addition, the Licensee alleged that the sole arbitrator had been biased because he was a member of an association to which a shareholder of the Licensor belonged. According to the Licensee, the arbitrator’s bias were evidenced by the fact that the award one-sidedly favoured the Licensee and disregarded the Licensee’s substantive arguments and its applications for the submission of evidence. The Licensee also alleged various irregularities regarding the arbitration proceedings. The Oberlandesgericht rejected the Licensee’s claims and declared most of the award to be enforceable. It first stated that the formal requirements for recognition of arbitral awards set out in Articles IV(1)(a) and IV(2) NYC had been met. It concluded that as the Licensor had submitted the original award and its translation, under German law, which was applicable by virtue of the more-favorable-right provision at Article VII NYC, it was not necessary for an applicant to submit the arbitration agreement (Section 1064(1) of the German Civil Procedure Code). The Oberlandesgericht also found that the substantive requirements for granting enforcement had been met, since none of the grounds for denying enforcement under Article V NYC were applicable. With reference to Article V(1)(a) NYC, the Oberlandesgericht noted that it did not need to decide whether the arbitration clause contained in the “License Agreement” was valid or not since the Landgericht’s earlier decision confirming the validity of the arbitration agreement had a res judicata effect. Moreover, given that the Licensee had initiated arbitration proceedings on the basis of the same arbitration agreement, it was now precluded from asserting that the arbitration agreement was invalid. Furthermore, the Oberlandesgericht rejected the Licensee’s argument that its right to be heard had been violated by the arbitrator, finding that the parties had been given a full opportunity to present their case, and that the right to be heard, as provided in Article V(1)(b) NYC, did not protect a party against an arbitral tribunal’s decision to disregard evidence applications by the parties based on formal or substantive reasons. The Oberlandesgericht also rejected the Licensee’s arguments regarding procedural irregularities under Article V(1)(d) NYC. Moreover, the Oberlandesgericht also rejected the Licensee’s arguments regarding a violation of German public policy under Article V(2)(b) NYC holding, first, that there was no evidence that the sole arbitrator’s membership in the association to which the Licensor happened to belong had affected the sole arbitrator’s impartiality and, second, that the findings in the award also did not violate German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1308&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 May 2007 Case number III ZB 14/07 Applicable NYC Provisions V | V(1)(e) | V(1)(d) Source DIS Summary The Parties concluded a supply contract in 2000 containing a clause providing for the resolution of disputes at the International Arbitration Court (IAC) at the Belarusian Chamber of Commerce and Industry in Minsk. The Claimant initiated arbitration and obtained favorable award in 2005, which was signed by the President of the tribunal and the arbitrator appointed by the Claimant. The signature of the third arbitrator was replaced by a statement of the President that he was on vacation. The Claimant sought enforcement in Germany, where the Defendant had a subsidiary company. In the meantime, the Supreme Commercial Court in Belarus annulled the award, finding that the tribunal had violated the IAC rules, and that the third arbitrator did not sign the award because he disagreed with the decision, and the President should have requested appointment of a substitute arbitrator. Enforcement was denied by the Oberlandesgericht (Higher Regional Court) Dresden on 31 January 2007 pursuant to Article V(1)(e) NYC, because the award had been set aside in Belarus. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof dismissed the appeal and denied enforcement, finding that the Oberlandesgericht had not violated due process by failing to examine fully the Claimant's arguments. It reasoned that Article V(1)(e) NYC allows the enforcement court to refuse recognition when the award has been set aside by the court in the country of rendition. Furthermore, the Oberlandesgericht ascertained independently that the award had been rightly annulled because it was rendered by a truncated tribunal in violation of the applicable IAC rules. The Bundesgerichtshof further held that recognition should be also be refused under Article V(1)(d) NYC for irregularity of the arbitral procedure. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=284&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 Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 31 January 2007 Case number 11 Sch 18/05 Applicable NYC Provisions V | V(1)(e) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary The Applicant, a U.S. company, entered into a sales contract with a manufacturer of tractors owned by the Belarusian state. The contract provided for arbitration at the Belarusian Chamber of Commerce and Industry in Minsk. A dispute arose and the Applicant initiated arbitration proceedings. An award was rendered in favor of the Applicant, which was set aside by the Supreme Commercial Court of Belarus upon application by the Belarusian company. The Applicant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Dresden against the Respondent, a German subsidiary of the Belarusian company. The Respondent opposed enforcement, arguing that, inter alia, the award had been set aside in Belarus and moreover, that it had only been signed by two of the three arbitrators. The Applicant contended that the annulment decision by the Supreme Commercial Court of Belarus should not be recognized because Belarus was a dictatorship and the Supreme Commercial Court had acted to protect the financial interests of the head of state rather than the legal order. The Applicant further submitted that the enforcement of the award was subject to the European Convention on International Commercial Arbitration of 1961 (the “ECICA”), Article 9 of which provided that the annulment of an award would only constitute a ground for refusal of enforcement in a contracting state if arbitration agreement was invalid or if the arbitration proceedings were not in accordance with the agreed arbitration rules. The Applicant argued that neither of these conditions had been met. The Applicant stated that the ECICA was applicable even though only Belarus, but not the United States, was a party to the ECICA. It reasoned that the trade agreement signed between Belarus and the United States provided that each contracting party was to treat the other contracting party no less favorably than any other state with which the contracting party had entered into a treaty. The Oberlandesgericht refused to declare the award enforceable. It held that the enforceability of the award was subject to Section 1061 of the German Civil Procedure Code in conjunction with the NYC and the ECICA. The Oberlandesgericht found that the application of the ECICA was not hindered by the fact that the United States and Belarus were both parties to the NYC. It further noted that Article 9 ECICA limited the application of Article V(1)(e) NYC to only those cases of setting aside which were enumerated in Article 9 ECICA. The Oberlandesgericht found that the ECICA was applicable on the basis of the most favorable treatment principle contained in the trade agreement between the United States and Belarus. The Oberlandesgericht noted that, as compared to the NYC, the ECICA accords a greater degree of deference to the autonomy of economic agents who submit their disputes to arbitration. It noted that this promoted the free exchange of goods, which was an objective of the most favored nation principle. Finally, the Oberlandesgericht found that the annulment of the award in Belarus was in compliance with the annulment grounds under the ECICA and the annulment decision therefore had to be accepted. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1315&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 2007 Case number III ZB 35/06 Source DIS Summary An arbitral tribunal at the International Chamber of Commerce (ICC) in Geneva rendered a Partial Award on Jurisdiction deciding both its jurisdiction and the allocation of the costs incurred up to that stage of the proceedings. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) granted enforcement. The Defendant appealed. The Bundesgerichtshof (Federal Supreme Court) upheld the decision of the Oberlandesgericht, finding that a foreign arbitral award containing a decision on jurisdiction as well as a decision on the allocation of the costs of the proceedings incurred to that stage is not an interim decision, but rather a final award which can be declared enforceable. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=283&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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