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Germany / 03 November 2006 / Germany, Landgericht Düsseldorf (Regional Court of Düsseldorf) / N/A / 13 O 42/06
Country Germany Court Germany, Landgericht Düsseldorf (Regional Court of Düsseldorf) Date 03 November 2006 Parties N/A Case number 13 O 42/06 Applicable NYC Provisions V | V(1) | V(1)(a) Source Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4069&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 25 October 2006 Parties N/A Case number 34 Sch 022/06 Applicable NYC Provisions IV | V | VII Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4137&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 10 August 2006 Case number 20 Sch 07/04 Applicable NYC Provisions VII | V | IV | III | V(1)(e) | V(2)(a) | VII(1) | V(1)(a) | IV(2) | IV(1)(b) Source Original decision obtained from the registry of the Kammergericht
Languages English Summary In relation to a joint venture contract for the exploration of Lithuanian oil fields, a tribunal constituted under the Rules of the International Chamber of Commerce (“ICC”), seated in Copenhagen, ordered the Respondents, a foreign state and a company incorporated under the laws of that state, to pay damages to the Applicant as joint and several debtors. The foreign state issued a resolution stating that it did not consider it appropriate to seek annulment of the award at the seat of the arbitration. The Applicant applied for enforcement of the award in Germany. The foreign state opposed enforcement before the Kammergericht (Higher Regional Court Berlin) arguing that (i) it was not a party to the arbitration agreement, (ii) the arbitration agreement did not encompass disputes regarding the oil fields, (iii) this was a dispute about natural resources which were in the public law domain and thus not susceptible to arbitration, and (iv) that it had not been fully granted the right to be heard. The foreign state further argued that its resolution did not constitute a waiver of the right to seek an annulment of the award and that the time limit for seeking annulment had not yet passed. In addition, it sought that the arbitral tribunal’s factual findings be fully reassessed by the Kammergericht. The Respondent company opposed enforcement of the award, stating that (i) the Applicant had not fulfilled the formal requirements for enforcement as it had not submitted a notarized translation of the arbitration agreement, (ii) that the application for enforcement would constitute an abuse of law as the Applicant was not willing to comply with the award issued for the counter claims raised by the Respondent company, and (iii) that the recognition and enforcement of the award would be contrary to German public policy. It further argued that it did not have any attachable assets in Germany due to which the Kammergericht did not have jurisdiction over it. The Kammergericht declared the award enforceable against the Respondent state but not the company. It found that the application met the formal requirements for a declaration of enforceability and that pursuant to Section 1064 paras 1 and 3 of the German Civil Procedure Code the Applicant need only provide a certified copy of the arbitral award. It held that while Articles IV(1)(b) and IV(2) NYC required submission of the original arbitration agreement or a certified copy, and a certified translation of the award, under the more-favorable-right provision at Article VII(1) NYC, the less stringent requirements of German law would be applicable. The Kammergericht noted that this interpretation was also in line with Article III NYC according to which the recognition of foreign awards could not be subject to substantially more onerous conditions than the recognition of domestic awards. On the merits, the Kammergericht concluded that the Respondent state was precluded from raising objections since it had previously, by way of its resolution, abstained from seeking annulment of the award at the arbitral seat, even though the award could only be set aside at the seat. According to the Kammergericht, for the Respondent state to object to enforcement now was in contradiction to its previous stance and against good faith. With respect to the Respondent company, the Kammergericht refused to declare the award enforceable, finding that the application was inadmissible since the company did not own assets in Germany. The Kammergericht concluded that its finding of inadmissibility was not barred under the NYC as it did not involve a decision on the merits of the dispute and the NYC did not address general admissibility requirements in addition to the specific requirements stipulated in the NYC. reversed by : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1318&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 03 July 2006 Case number 9 Sch 1/06 Applicable NYC Provisions V | VII | V(1)(b) | V(2)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Respondent sought correction of an award rendered by an arbitral tribunal seated in Geneva, constituted under the Rules of the International Chamber of Commerce (ICC), on the grounds that the tribunal had failed to order simultaneous and reciprocal counter-performance (“Erfüllung Zug um Zug”) by the Claimant. After the tribunal dismissed the Respondent´s request, the Claimant sought enforcement of the award in Germany. The Respondent opposed enforcement arguing that (i) even though it had not sought annulment at the seat of the arbitration, it was not precluded from raising objections based on a violation of public policy (ii) it had claims for set-off against the Claimant (iii) certain gaps in the operative provisions of the award needed to be filled at the enforcement stage and (iv) its right to be heard had been violated because the tribunal had not taken certain arguments into account and had failed to hear some of the Respondent’s witnesses. The Oberlandesgericht (Higher Regional Court) Karlsruhe granted enforcement, holding that due to the Respondent’s failure to challenge the award at the seat of the arbitration within the time limits, it could not oppose enforcement of the award at this point, even based on the grounds for refusal of enforcement in Articles V(1)(b) and V(2)(a) NYC, the grounds of seeking a correction of the award, or for the set-off of its claims. It stated that it was established case law that the grounds for refusal of enforcement could only be considered in enforcement proceedings if an admissible and relevant annulment action was not time-barred at the foreign arbitral seat and noted that, in the present case, the application for annulment at the Swiss seat had become time-barred. According to the Oberlandesgericht, a permissive approach to the refusal of enforcement grounds in Article V NYC was not precluded by the NYC as an international treaty or as part of the domestic law. The Oberlandesgericht concluded that under Article VII(1) NYC, domestic court practice that was more favorable to the recognition and enforcement of awards had precedence over the procedures in the NYC. It further noted that, in relation to domestic awards, the revised German Civil Procedure Code expressly barred the enforcement court from considering non-enforcement grounds, which an applicant failed to raise within the relevant time limits in an annulment action. According to the Oberlandesgericht, to give effect to legal certainty, the same approach should be applied with respect to foreign arbitral awards, even though the German Civil Procedure Code did not expressly say so. The Oberlandesgericht also rejected the Respondent’s requested correction of the operative parts of the award, finding that German courts were not empowered to make substantive additions to arbitral awards. Finally, the Oberlandesgericht also rejected the Respondent’s set-off claims holding that these claims were covered by the parties’ arbitration clause and hence could not be decided by a state court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1322&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 26 June 2006 Case number 26 Sch 28 / 05 Applicable NYC Provisions II | VII | II(1) | II(2) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary The Applicant sought enforcement of an arbitral award rendered in the Netherlands ordering the Respondent to make payment for goods delivered by the Applicant. Following a phone conversation between the parties, the content of which was disputed, the Respondent had sent two purchase orders to the Applicant by fax, which included a reference to the exclusive application of the Respodnent’s general purchasing terms and conditions . The Applicant confirmed receipt of the purchase orders by fax, adding that the purchase orders were subject to the Rules for the Graphic Industry in the Netherlands, which contained an arbitration clause. The Respondent did not respond to the confirmation. Subsequently, the Respondent failed to pay the purchase price and the Applicant initiated arbitration proceedings. During the proceedings, the Respondent did not present arguments on the merits. The tribunal issued an award granting Applicant’s claims and the Applicant sought recognition and enforcement of the award in Germany. The Respondent opposed the enforcement arguing that it had not agreed to the Applicant’s terms and conditions and there was thus no arbitration agreement between the parties. The Oberlandesgericht (Higher Regional Court) Frankfurt rejected the application for recognition, finding that there was no arbitration agreement in writing between the parties as per Article II(2) NYC and that based on Article III and Article V(1)(a) NYC, the award could not be recognized. The Oberlandesgericht stated that although the absence of an arbitration agreement had to be raised during the arbitration proceedings, omitting to do so did not preclude a respondent from raising a defense based on the absence of an agreement in writing, as per Article II NYC, at the enforcement stage. The Oberlandesgericht stated that under Article II(2) NYC, an “agreement in writing” as mentioned in Article II(1) NYC meant an arbitration clause in a contract or a separate arbitration agreement which was signed by the parties or was contained in an exchange of letters or telegrams between the parties. It stated that the burden of proving the existence of such a written agreement rested on the party seeking enforcement. The Oberlandesgericht concluded that based on the Applicant’s allegations alone it was clear that the parties had not concluded an “agreement in writing,” as required under Article II(2) NYC. The Oberlandesgericht clarified that Article II(2) NYC required an exchange of documents between the parties and that a unilateral transmission of a contract was insufficient, in the same way that a unilateral written confirmation of an oral agreement would be insufficient. The Oberlandesgericht added that an oral agreement or tacit acceptance of a contractual offer did not satisfy the requirement of an agreement in writing under Article II(2) NYC. Finally, the Oberlandesgericht held that the requirement that the arbitration agreement be in writing, as per Article II NYC, could not be disregarded based on the more-favorable-right provision of Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1321&opac_view=6 Attachment (1)
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Country Germany Court Germany, Kammergericht Date 18 May 2006 Case number 20 Sch 13/04 Applicable NYC Provisions V | V(1)(a) Source DIS Summary In 2004, an award was issued in favor of the Claimant by a sole arbitrator at the International Chamber of Commerce (ICC) in Shanghai. The Parties' contract referred to the standard FIDIC arbitration clause. In September 2004, the Peoples' Court of X rejected the Claimants' application for enforcement and had held the arbitration clause to be invalid because it did not designate an arbitral tribunal or institution. The Claimant then sought declaration of enforceability at the Peoples' Court of Wuxi. A decision in these proceedings was not rendered at the time the Claimant sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) denied enforcement, holding that a final decision of a foreign court on recognition and enforcement binds an enforcing German court. The Chinese court had held the arbitration clause to be invalid according to Chinese law for failing to designate an arbitral institution or tribunal. The Kammergericht considered that recognition must therefore be denied pursuant to Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=282&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) Date 27 March 2006 Case number 9 Sch 02/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) | V(1)(b) Source Original decision obtained from the registry of the Oberlandesgericht Karlsruhe Languages English Summary The Applicant applied to the Oberlandesgericht (Higher Regional Court) Karlsruhe for recognition and enforcement of an arbitral award rendered in its favour by an arbitral tribunal in Ukraine under the arbitration rules of the International Commercial Arbitration Court (“ICAC”) of the Ukrainian Chamber of Commerce and Industry. The Respondent opposed the enforcement application contending that (i) it had not received the arbitral award on March 1, 2005 as alleged by the Applicant, (ii) the arbitral tribunal had violated due process by refusing to grant the Respondent’s request for postponement of the oral hearing, and (iii) the arbitral award was entirely arbitrary. The Oberlandesgericht declared the award enforceable, holding that the Respondent was precluded from raising objections to enforcement at this stage since it had failed to challenge the award on those grounds at the seat of the arbitration within the applicable time limits. The Oberlandesgericht noted that it was long accepted in German case law that objections to enforcement could only be considered in enforcement proceedings if an admissible annulment application was not yet time-barred at the seat of the arbitration. According to the Oberlandesgericht, the applicable time limit had lapsed even if the Respondent had not received the arbitration award on March 1, 2005, as it would have received the award in June 2005 at the latest. The Oberlandesgericht further noted that although Article V NYC did not contain such a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement in accordance with Article VII NYC. Moreover, the Oberlandesgericht noted that Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to missed domestic annulment proceedings and that foreign preclusion rules should equally be given effect to ensure legal certainty in relation to arbitration awards. The Oberlandesgericht held that, in any case, the enforcement application was without merit. The Oberlandesgericht found that the Respondent’s right to be heard (Article V(1)(b) NYC) had not been violated by the tribunal’s refusal to postpone the oral hearing, adding that the Respondent could have sent a suitable representative and that a further postponement of the hearing date would have resulted in a disregard of the Applicant’s interest in legal protection. The Oberlandesgericht further held that the Respondent’s allegation as to the arbitrariness of the award was baseless and therefore there had been no violation of public policy under Article V(2)(b) NYC. The Oberlandesgericht noted that a public policy violation could be assumed only when the arbitral tribunal’s reasoning could no longer be followed and that a review of the content of the award on the merits was not permissible. Finally, the Oberlandesgericht held that it could decide on the application for the declaration of enforceability without conducting an oral hearing due to the fact that the grounds raised by the Respondent for denying enforcement had been precluded and its further allegations had not been sufficiently substantiated. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1314&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 15 March 2006 Case number 34 Sch 06/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(1)(d) | IV(1) Source DIS Summary The parties concluded a manufacturing contract containing a clause referring disputes at the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC). A dispute arose when the supplier allegedly failed to pay under several invoices. The Claimant initiated arbitration and obtained a favorable award, and subsequently sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) München granted enforcement and rejected the Defendant's objection that the composition of the tribunal was not in accordance with the Parties' agreement, as the tribunal had been composed of one arbitrator rather than two or more arbitrators as agreed in the arbitration clause. The Court held that the Defendant was aware of this composition but did not object to it during the arbitration proceedings, and was therefore estopped from raising this objection during enforcement proceedings. The Claimant had fulfilled the formal requirements for enforcement under Article IV(1)(a) by supplying the original arbitral award together with a certified copy of its German translation. In virtue of the more-favorable-right provision of Article VII(1) NYC, it was not necessary to supply the arbitration agreement as required by Article IV(1)(b) NYC, because domestic German law does not require it. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / a. Documents specified under article IV(1) / §17
- IV / 2. ANALYSIS (IV) / A. The requirement that the applicant provide the arbitration agreement 'referred to in article II' / §66
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=281&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 14 March 2006 Case number 6 Sch 11/05 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Hanseatisches Oberlandesgericht Hamburg
Languages English Summary The parties concluded a contract for cabling works in Mozambique which contained an arbitration clause providing for arbitration under the Rules of the International Chamber of Commerce (ICC). A dispute arose and the Claimant initiated arbitration proceedings in Geneva. The Respondent objected to the jurisdiction of the tribunal and the tribunal rendered a partial award confirming its jurisdiction and allocating the costs incurred up to that point in the proceedings. Meanwhile, the Respondent initiated proceedings against the Claimant in the German state courts, which were dismissed as being inadmissible. The Claimant sought enforcement of the decision on costs before the Oberlandesgericht (Higher Regional Court) Hamburg. The Respondent opposed enforcement arguing that the arbitral tribunal had lacked jurisdiction due to the invalidity of the arbitration agreement. It further argued that because the arbitral tribunal had lacked jurisdiction, the Oberlandesgericht did not have jurisdiction to decide on the enforceability of the partial award. The Respondent also argued that the partial award was not enforceable because it had not conclusively decided the entire dispute, or a distinct part thereof. Finally, it argued that the partial award improperly contained a decision on costs, which could have legally binding effect only for the final award and which would not make the partial award enforceable. The Oberlandesgericht granted enforcement of the partial award, holding that none of the grounds for refusal of enforcement under Article V NYC were applicable. It held that the arbitration clause was valid under Article II(2) NYC, and that the Respondent’s objections to the validity of the arbitration agreement were unfounded, as held by the German courts in the court proceedings previously initiated by the Respondent. The Oberlandesgericht further concluded that the partial award was enforceable since the arbitrator had arrived at a final decision on the issue of jurisdiction and on the allocation of costs for that phase of the proceedings. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1323&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 23 February 2006 Case number III ZB 50/05 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source BGH Languages English Summary The Parties concluded a contract for the delivery of wood that provided for arbitration pursuant to the Arbitration Rules of the Belorussian Chamber of Industry and Commerce in Minsk. The Defendant did not participate in the proceeding since it considered the arbitration clause to be invalid. The Oberlandesgericht (Higher Regional Court) Karlsruhe rejected the application to declare the award enforceable on the ground of violation of public policy, arguing that the award did not comply with a provision of the Belorussian Arbitration Law providing that in the event of a challenge to its jurisdiction, the arbitral tribunal must rule on its competence in a preliminary award. The Claimant thereafter sought to set aside the decision of the Oberlandesgericht Karlsruhe by a complaint on points of law to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that the Oberlandesgericht Karlsruhe was mistaken in ruling that the award violated public policy. Pursuant to Article VII(1) NYC and the (more favourable) provisions of the German-Soviet Treaty on General Issues of Trade and Maritime Transport of 1958, which was held to apply to Germany's relations with Belorussia, grounds for non-enforcement were more limited than under the NYC, since the Treaty presupposes a violation of international public policy. The Bundesgerichtshof held that the tribunal did not violate international public policy since neither the UNCITRAL Model Law nor the German law required an tribunal to always rule by separate and preliminary award. Because the Parties were not prevented from having the award reviewed by the state courts, their fundamental rights had not been infringed. The Bundesgerichtshof held that the declaration of enforceability could not have been denied on that ground. Yet, it could have been denied on the basis of the absence of a valid arbitration agreement. Since the Oberlandesgericht Karlsruhe did not determine this issue, the matter was referred back to it. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=382&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 28 November 2005 Case number 34 Sch 019/05 Applicable NYC Provisions VII | V | IV | V(2)(b) | IV(2) | IV(1)(a) | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht München
Languages English Summary The Respondent, a German paint company, engaged the Applicant, a UK construction company, to perform plastering works on certain buildings in the UK. A dispute arose as to the quality of the Applicant’s work and the Respondent refused to pay the Applicant for the work done. The parties went to arbitration and a sole arbitrator rendered an award granting part of the Applicant’s claims. The Applicant sought enforcement of the partial award in Germany. The Respondent objected to the enforcement contending, in particular, that the award should not be enforced since the sole arbitrator had not taken into account certain facts presented by the Respondent. The Oberlandesgericht (Higher Regional Court) München granted enforcement stating that the application for a declaration of enforceability met the formal requirements under German law (Sections 1025(4), 1061(1), 1064(1) and (3) of the German Civil Procedure Code. It noted that the Applicant had submitted the original award as well as a translation in German. It further stated that to the extent that Article IV NYC contained additional requirements regarding the submission of documents and their respective quality, pursuant to the more-favorable-right principle at Article VII(1) NYC, the less stringent requirements of German law were applicable instead of those in Article IV NYC . The Oberlandesgericht concluded that Section 1064(1) of the German Civil Procedure Code, in conjunction with Section 1064(3) of the German Civil Procedure Code were more favorable to the recognition of foreign arbitral awards and were applicable instead of Article IV NYC. The Oberlandesgericht also held that the grounds for refusing enforcement under Article V NYC were not applicable as the Respondent had not raised any of the grounds for refusing enforcement under Article V(1) NYC, and that enforcement could not be rejected based on the Respondent’s claim that the award violated public policy under Article V(2)(b) NYC. The Oberlandesgericht stated that an arbitral award violated public policy only if it violated a norm which affected the basis of German public and economic life or if it constituted an irreconcilable contradiction of German perceptions of justice. It held that public policy also included fundamental principles of procedural law, such as the right to be heard, and that whether there had been a breach of the right to be heard would be assessed on the basis of principles of German law. The Oberlandesgericht further held that it was key whether, from the standpoint of German public policy, the specific result of the application of a foreign law was to be rejected. The Oberlandesgericht concluded that in the present there was no violation of public policy as the Respondent had failed to prove that the arbitral tribunal had indeed ignored relevant facts. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §38
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §9
- I / 2. ANALYSIS (I) / ARTICLE I(1) / a. Awards “made in the territory of a State other than the State where the recognition and enforcement of such awards are sought” / §45
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / b. Domestic law more favourable than article IV / §37
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Procedural public policy / §35
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1324&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 07 November 2005 Case number 11 Sch 07/04 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted the application for declaration of enforceability of the arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the Respondent had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was to be declared enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application also met the relevant formal requirements, as it had supplied a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the Applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law and, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1313&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 02 November 2005 Case number 11 Sch 15/05 Applicable NYC Provisions VII | IV | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary Following enforcement proceedings in which the Respondent did not participate, the Oberlandesgericht (Higher Regional Court) Dresden granted enforcement of an arbitration award issued by the Vienna Commodity Exchange. The Oberlandesgericht held that it could decide on the application without conducting an oral hearing since the enforcement debtor had not requested the annulment of the arbitration award pursuant to Section 1063(2) of the German Civil Procedure Code. The Oberlandesgericht held that the arbitration award was enforceable since the Respondent had not raised any objections to enforcement, and no grounds for refusal of enforcement were apparent. The Oberlandesgericht further held that the Applicant’s application fulfilled the relevant formal requirements, as it had submitted a certified copy of the German-language arbitration award. The Oberlandesgericht stated that the applicant did not need to submit a certified copy of the arbitration agreement as required under Article IV NYC, since the same was not required under German law, which was applicable instead of Article IV NYC pursuant to the more-favorable-right provision at Article VII NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1312&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 06 October 2005 Case number 8 Sch 06/05 Applicable NYC Provisions V | V(1)(d) | V(1)(e) | V(2)(b) Source DIS Languages English Summary The Parties concluded a sales contract containing a clause for the resolution of disputes at the International Commercial Arbitration Court (ICAC) at the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and an ICAC award was rendered in favour of the Claimant. The Claimant sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Celle. The Respondent argued that enforcement should be refused as the arbitration contravened the requirements for pre-arbitration proceedings that were allegedly contained in the Parties' contract. The Respondent further argued that the award was not final and binding on the Parties and should be denied enforcement pursuant to Article V(1)(e) NYC, and the tribunal's award on costs violated German public policy and should be denied enforcement pursuant to Article V(2)(b) NYC. The Oberlandesgericht (Higher Regional Court) Celle granted enforcement, holding that the contract merely contained a non-binding request that the Parties settle disputes by negotiation if possible. The Court also dismissed the Respondent's argument that the award was not yet binding on the Parties. It considered that whether an award is final is to be determined pursuant to the rules under which it was rendered, and that the award was final in this case and had been duly communicated to the Respondent. The Court rejected the Respondent's third argument, holding that it could not review the granting of contractual penalty by the arbitral tribunal since there can be no review of foreign arbitral awards on the merits. The Court held that the penalty, though representing 40% of the main obligation under the contract and being therefore "disproportionally high", did not per se violate the international public policy of Germany. The same principle applied to the decision on costs. In order to violate public policy, additional circumstances such as abuse of economic power would have been necessary. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=371&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 04 October 2005 Case number VII ZB 09/05 Applicable NYC Provisions III Source DIS Languages English Summary An award issued by an arbitral tribunal constituted under the Rules of the Stockholm Chamber of Commerce ordered the Russian Federation, on the basis of the Germany-USSR Investment Treaty, to pay damages to the Applicant. The Kammergericht (Higher Regional Court of Berlin) declared the award enforceable. The Applicant applied for, and obtained from the Amtsgericht (Local Court) Koeln, a third-party execution order for the attachment and transfer of pecuniary claims of the Russian Federation against a third party for the grant of overflight and other rights concerning air traffic. The Russian Federation and the third-party objected to the order and the Amtsgericht vacated the order. The Applicant appealed to the Oberlandesgericht (Higher Regional Court) Koeln which upheld the decision of the lower court. The Applicant appealed to the Bundesgerichtshof (Federal Supreme Court) on points of law, aiming to have the third-party execution order reinstated. The Bundesgerichtshof dismissed the appeal on points of law, finding that the attachment order was inadmissible. It held that German courts lacked international jurisdiction to attach claims for fees relating to the granting of overflight, transit and landing rights, as such public law claims of a foreign state were not subject to attachment in execution proceedings under German law. The Bundesgericht found that the Russian Federation’s fees for air traffic rights arose directly from, and served, sovereign purposes, namely the administration of air traffic, and that they were thus protected from being attached due to diplomatic immunity, as the Russian Federation had not waived its immunity in this regard. It clarified that whether the assets were of a sovereign nature or not had to be determined under the German lex fori, and that under German law assets were granted immunity from satisfying execution when they served a sovereign purpose at the time of initiation of the enforcement proceedings. The Bundesgerichtshof found that entering into an arbitration agreement could imply a waiver of immunity, but that any such waiver would not generally extend to the enforcement proceedings. It further noted that the reference in the Germany - USSR Investment Protection Agreement to the NYC was merely meant to open up the opportunity for enforcement but did not contain a general waiver of immunity. In this context, the Bundesgerichtshof noted that pursuant to Article III NYC, foreign awards were to be enforced in accordance with domestic procedural rules, which under German law included the commonly acknowledged principles of international law recognizing diplomatic immunity. The Bundesgerichtshof also held that a general waiver of immunity could not be assumed on grounds of public international law and noted that the ICSID Convention even contained an express reservation regarding state immunity from enforcement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1329&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 04 October 2005 Case number VII ZB 8 / 05 Applicable NYC Provisions III Source DIS Languages English Summary The Applicant had an investment dispute with the former USSR. Based on the Investment Protection Agreement signed by the Federal Republic of Germany and the former USSR the Applicant obtained a favorable award in arbitration proceedings conducted under the Rules of the Stockholm Chamber of Commerce and was granted enforcement by the Kammergericht (Higher Regional Court of Berlin). In the execution proceedings, the Amtsgericht Mitte (Berlin Local Court) granted, upon the Applicant’s request, a third party debtor execution order for the attachment and transfer of certain of the Russian Federation’s claims against the Federal Republic of Germany for the refund of VAT, based on a German regulation according to which VAT was refunded to permanent diplomatic missions and their diplomats, non-honorary consular posts and their members. The Russian Federation objected to the order, arguing that the VAT refunds were generally used for the maintenance of the diplomatic mission and consular offices. Finding that the attached claims indeed served sovereign purposes and were thus exempt from attachment, the Amtsgericht vacated its attachment order. The Applicant appealed to the Kammergericht, which upheld the decision of the Amtsgericht. The Applicant then sought reinstatement of the attachment order before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof rejected the application for reinstatement of the attachment order holding that the attachment of the VAT refund claims was inadmissible as they served sovereign purposes and the respondent State had not waived its immunity in relation to such claims. The Bundesgerichtshof found that a waiver of immunity with respect to the execution proceedings could not be inferred from the inclusion of an arbitration agreement in the Investment Protection Agreement and that immunity in the context of the arbitration, on the one hand, and in the context of execution proceedings, on the other, had to be determined separately and based on different criteria. Moreover, it found that the provision of the Investment Protection Agreement which “recognized and enforced” arbitral awards in accordance with the NYC did not imply a waiver of immunity in respect of enforcement proceedings. The Bundesgerichtshof also stated that the NYC did not contain a waiver of sovereign immunity. It concluded that under Article III NYC, foreign awards were to be enforced in compliance with the rules of procedure of the country of enforcement and that the general principles of international law regarding diplomatic protection were part of German procedural law. The Bundesgerichtshof noted that while the NYC, in light of its object and purpose to foster cross-border investments, generally sought to make enforcement possible against assets of the contracting parties, it did not require such enforcement for assets which served a sovereign purpose. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1319&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 27 September 2005 Case number 29 Sch 01/05 Applicable NYC Provisions VII | V | IV | VII(1) | V(2)(b) | V(1)(a) | IV(2) | IV(1)(a) Source DIS Languages English Summary The parties entered into an agreement which provided that the Applicant, an Iranian citizen, would assist the Respondent, a German company, in resolving certain disputes it had with the Iranian authorities in exchange for a “consulting fee”. The agreement contained the following arbitration clause: “All disputes arising in connection with this Letter of Commitment shall be settled in accordance with the laws of conciliation and arbitration of the Geneva Chamber of Commerce. In case of non-settlement, the dispute will be submitted for a final decision to the arbitrators of the Geneva Court of Justice. The rules of conciliation an arbitration of the said court will be binding for both parties”. Subsequently, the Applicant initiated arbitration proceedings at the Geneva Chamber of Commerce, Industry and Services, Geneva (CCIG), seeking payment of outstanding consulting fees. The Respondent participated in the arbitration proceedings but sought a declaration that there existed no valid arbitration clause, the dismissal of the Applicant’s claims, and that conciliation proceedings be conducted following the constitution of the arbitral tribunal. Conciliation proceedings were conducted with no result and thereafter the arbitral tribunal decided on its jurisdiction in an interim arbitral award. The interim award stated that while the arbitration clause was “pathological”, it was nevertheless valid since the parties’ intent to arbitrate disputes in general, and more specifically to refer disputes to arbitration under the auspices of Geneva’s leading arbitral institution, was clear. The arbitral tribunal awarded part of the Applicant’s claims. The Applicant sought enforcement in Germany, to which the Respondent objected, arguing that the arbitration agreement was not valid because the clause was contradictory, and also that one of the signatories had understood it to be a choice of forum clause. The Respondent further argued that enforcement would be contrary to public policy in Germany because the award was rendered in violation of the Respondent’s right to be heard as the tribunal had failed to hear a witness on the issue of the validity of the arbitration agreement, and moreover, the consulting agreement was illegal because it has been concluded for the purpose of financing the payment of bribes. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement, finding that the formal conditions for recognition of the award, as set out in Article IV(1)(a) and IV(2) NYC, had been met as the Applicant had provided certified copies and translations of the final and interim awards. It found that it was sufficient that the Applicant had only provided a copy of the arbitration agreement and not the original because, pursuant to the NYC’s more-favorable-right provision in Article VII(1) NYC, the less stringent requirements Section 1064 of the German Civil Procedure Code were applicable instead of those in Article IV(1) NYC. The Oberlandesgericht rejected the Respondent’s argument that the arbitration agreement was invalid (Article V(1)(a) NYC), reasoning that the Respondent had not only agreed to the constitution of the arbitral tribunal, the conciliation proceedings and to the tribunal deciding its jurisdiction in an interim award, but had also subsequently engaged in arguments on the merits without challenging the interim award under Article 190(3) read with 190(2)(b) of the Swiss Federal Act on Private International Law. It held that it would be a contradiction of the principle of fair and good conduct of proceedings if the Respondent were allowed, after such conduct, to question the validity of the arbitration agreement at the enforcement stage. The Oberlandesgericht stated that there was no established case law to the effect that the NYC would bar such a preclusion. It also held that, in any case, the Respondent’s defense regarding the absence of a valid arbitration clause was unfounded. It dismissed the Respondent’s public policy objections under Article V(2)(b) NYC stating that the Respondent itself had failed to call the relevant witness to testify on the issue in question and that the alleged bribery payments to Iranian officials had not been proven by the Respondent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1320&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 2005 Case number III ZB 18/05 Applicable NYC Provisions VII | VII(1) Source BGH Summary The Claimant initiated arbitration in the Netherlands for the payment of works under a sales contract, and obtained an award in its favor. The Defendant had challenged the tribunal's jurisdiction on the grounds that the Parties had entered into an oral agreement and their alleged arbitration agreement was contained in general conditions copied on sales invoices. The Claimant sought recognition and enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Oldenburg denied recognition on the grounds that there was no arbitration agreement in writing pursuant to Articles V(1)(a) and II(2) NYC. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that in matters of recognition and enforcement of foreign arbitral awards, German courts are empowered by Article VII(1) NYC to apply national German law motu propio (without the parties invoking it) if the latter contains more favorable conditions for enforcement. This includes the German conflicts of laws rules, which point to Dutch law as the applicable law to the contract (lex contractus) chosen by the Parties. Pursuant to Dutch case law, a reference in an invoice to standard conditions of contract containing an arbitration clause may validly bind the parties that are in an ongoing business relationship is valid. The Bundesgerichtshof referred the case back to the Oberlandesgericht, which had not addressed this issue. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=278&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Koblenz Date 28 July 2005 Case number 2 Sch 4/05 Applicable NYC Provisions V | V(1)(a) | V(1)(c) | V(2)(b) Source Original decision obtained from the registry of the Oberlandesgericht Koblenz Languages English Summary The parties entered into a commercial agency agreement which provided for dispute resolution under the Rules of the International Chamber of Commerce (ICC) arbitration. The parties subsequently entered into a termination agreement ending the commercial agency agreement with immediate effect. When a dispute arose with respect to certain commission claims by the Respondent under the commercial agency agreement, the Respondent initiated arbitration proceedings seeking, inter alia, a declaration that the termination agreement was forged and thus void. The Applicant raised certain counterclaims and the arbitral tribunal issued an arbitral award ordering the Respondent to pay certain amounts to the Applicant. The Applicant sought enforcement of the award in Germany, which the Respondent opposed, contending that the arbitration agreement contained in the commercial agency agreement had been terminated when the parties entered into the termination agreement, and that the arbitral tribunal could not render a decision after it had concluded that the termination agreement was valid. In addition, it argued that it had already submitted in the arbitration that the arbitral tribunal was not competent to hear the Applicant’s counterclaims. As an alternative argument, the Respondent raised the defense of set-off. The Oberlandesgericht (Higher Regional Court) granted enforcement, holding that the Applicant had met the formal requirements of Section 1064 of the German Civil Procedure Code, which was applicable pursuant to the more-favorable-right provision at Article VII NYC. The Oberlandesgericht also found that none of the non-enforcement grounds under Article V NYC were applicable, rejecting the Respondent’s argument under Article V(1)(a) NYC that the arbitration agreement was void because the commercial agency agreement had been terminated, finding that the commercial agency agreement and the arbitration clause were to be treated separately, and that the invalidity of the commercial agency agreement did not necessarily affect the validity of the arbitration clause. According to the Oberlandesgericht, the Respondent had failed to prove that the parties had intended to terminate the arbitration clause when they entered into the termination agreement. In addition, the Oberlandesgericht held that, in any case, the Respondent was precluded from questioning the validity of the arbitration agreement since it had failed to do so during the arbitration and had in fact initiated the arbitration proceedings in the first place, arguing that the termination agreement was invalid. The Oberlandesgericht dismissed the Respondent’s argument that it had previously objected to the jurisdiction of the tribunal to decide on the Applicant’s counterclaims, holding that it could not be ascertained if the Respondent’s objection had been based on the lack of a valid arbitration clause. The Oberlandesgericht further stated that the Respondent presumably wanted to allege that the Applicant’s counterclaims were not covered by the arbitration agreement. It found that this issue had been properly addressed in the award and had led to the dismissal of one of the Applicant’s counterclaims. The Oberlandesgericht held that to the extent that the arbitral tribunal had granted Applicant’s counterclaims, there was no reason to refuse enforcement under Article V(1)(c) NYC. Finally, with respect to the Respondent’s auxiliary defense of set-off, the Oberlandesgericht noted that the admissibility of a set-off at the enforcement stage was generally disputed, but held that it did not need to arrive at a conclusion on the matter since the Respondent was, in any event, time-barred under Section 767(2) of the German Civil Procedure Code from raising this defense. It further stated that an exception from the time-bar could only be made if the Respondent had raised its set-off claim during the arbitration and the arbitral tribunal had considered itself without jurisdiction to rule on it, which was not the case here. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1328&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 30 March 2005 Case number 11 Sch 0005/05 Applicable NYC Provisions V | IV Source Original decision obtained from the registry of the Oberlandesgericht Dresden Languages English Summary A dispute arose between two parties with respect to an outstanding payment for an airplane. The Arbitration Court of the Economic Chamber of the Czech Republic rendered an award partially granting the Applicant’s claims, which the Applicant sought to enforce in Germany. The Respondent did not raise any objections to the enforcement of the award. The Oberlandesgericht (Higher Regional Court) Dresden declared the award enforceable, finding that the application for enforcement met the requirements of Article IV NYC. It observed that the Respondent had neither raised nor proven the existence of any non-enforcement grounds under Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1326&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 19 January 2005 Case number I-26 Sch 05/03 Applicable NYC Provisions V | V(1)(e) Source DIS Languages English Summary A company obtained a favorable arbitral award in arbitration proceedings conducted pursuant to the arbitration rules of the Bucharest Court of International Commercial Arbitration and sought enforcement of the award in Germany. The Respondent objected to the enforcement on the grounds that the Romanian Supreme Court had ordered the Applicant to pay certain sums to the Respondent, which would set off the Applicant’s arbitration claims. The Applicant contended that claims for set-off could not be raised in enforcement proceedings. It also raised various other defenses against the claim for set-off. The Oberlandesgericht refused enforcement. The Oberlandesgericht (Higher Regional Court) Düsseldorf stated that under Article V(1)(e) NYC in order for a foreign award to be enforceable it had to have become binding pursuant to the relevant law, here German law, which it found to be the case. The Oberlandesgericht also found that there were no grounds to refuse enforcement under Article V(2) NYC. However, it eventually refused enforcement, holding that the Respondent’s set-off claims were both admissible and well-founded. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1330&opac_view=6 Attachment (1)
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Valerio Sangiovanni / L'applicazione in Germania della Convenzione di New York sul riconoscimento e l'esecuzione dei lodi arbitrali stranieri [Translation: The application in of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in Germany] / 41(1) Rivista di diritto internazionale privato e processuale 41 (2005) - 2005
Author(s) Valerio Sangiovanni Source 41(1) Rivista di diritto internazionale privato e processuale 41 (2005) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Germany ISBN 3-452-24909-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3021&opac_view=6 Attachment (1)
External ResourceExternal Resource
Author(s) Inka Hanefeld ; Mathias A. Wittinghofer Source SchiedsVZ 217 (2005) 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=4207&opac_view=6
Country Germany Court Germany, Oberlandesgericht Thüringen Date 08 November 2004 Case number 4 Sch 4/03 Applicable NYC Provisions V | IV Source Original decision obtained from the registry of the Oberlandesgericht Thüringen Languages English Summary The parties entered into a contract containing a clause providing for arbitration before one or more arbitrators appointed either under the rules of the Vilnius Court of Commercial Arbitration or the UNCITRAL Arbitration Rules. A dispute arose and the Seller initiated arbitration before the Vilnius Court of Commercial Arbitration, obtaining a favorable award, which it sought to enforce in Germany. The Respondent opposed its enforcement arguing, in particular, that it had not been granted the right to be heard and that the award violated German public policy because it had been obtained by fraud. The Oberlandesgericht (Higher Regional Court) Thüringen declared the award enforceable, holding that the Seller’s application met the formal requirements of Article III NYC and that there were no grounds to refuse enforcement under Article V NYC. It held that the Respondent had been granted the right to be heard as it had been informed of the arbitral proceedings and the oral hearing in a timely manner. It found that the relevant notices had been delivered to a person whom the Applicant could rightly have assumed to be the Respondent’s representative, as that person had previously held such a role and the Respondent had failed to correct such impression. It thus considered that the Respondent had properly been notified. Moreover, the Oberlandesgericht found that the Respondent had made statements in the arbitration and that the Respondent’s arguments were also discussed in the award. The Oberlandesgericht also dismissed the Respondent’s argument that the enforcement of the award violated German public policy, stating that although an arbitral award that was obtained fraudulently violated German public policy, a high standard applied to such allegations, which were admissible at the enforcement stage only to the extent the Respondent had not defended itself in the arbitral proceedings, since court review of a foreign arbitral decision was limited. The Oberlandesgericht noted that, while the Respondent had participated in the arbitration, it had raised allegations of fraud only in the present enforcement proceedings, which the Oberlandesgericht found to be belated. It thus considered Respondent’s fraud allegations to be precluded and additionally held that the allegations had also not been sufficiently substantiated and proven. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1327&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 26 October 2004 Case number 9 Sch 12/04 Applicable NYC Provisions V Source DIS Languages English Summary The Applicant obtained a favorable award, rendered pursuant to the rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation in Moscow. The Applicant sought enforcement of the award in Germany, which was opposed by the Respondent, arguing that it had not been informed about the arbitration proceedings and had learned about the arbitral award only through the application for enforcement. It also argued that it had not entered into a contract with the Applicant and that, in any case, the parties had agreed to submit their disputes before a different arbitral tribunal.” The Oberlandesgericht (Higher Regional Court) Köln granted enforcement, holding that the application was well founded since none of the grounds for refusing enforcement under the NYC were applicable. It found that the Respondent’s allegation that it had not been informed about the arbitration was contradicted by evidence. It also found that the arbitral tribunal had affirmed its own jurisdiction on the basis that there existed no other arbitral institution in Moscow than the International Commercial Arbitration Court at the Moscow Chamber of Commerce and Industry of the Russian Federation that the parties had contractually agreed to. Moreover, it found that the arbitral tribunal had confirmed that the Applicant, in its capacity as legal successor of the original contracting party, was entitled to pursuing its claims against the Respondent. In consequence, since the arbitral tribunal had conclusively ruled on them, both the question of jurisdiction and the question of the Applicant’s entitlement to pursue its claims, could not be reassessed by the Oberlandesgericht. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1325&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 23 September 2004 Case number 4 Z Sch 05/04 Applicable NYC Provisions VII | V | VII(1) | V(1)(d) Source DIS
Summary The Parties entered in a service agreement, which the Defendant terminated. The Claimant initiated Court proceedings in Syria. The Syrian court decided in the Claimant's favor. The Defendant's Syrian counsel subsequently agreed to arbitrate the claim in Syria, and that the proceedings would take the Syrian Court decision into account. An award was rendered in the Claimant's favor, who then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement. It reasoned that in this case, an objection based on the lack of a written arbitration agreement does not constitute a ground for denying recognition because the objecting party participated in the arbitration without raising any objection to jurisdiction, and also signed a written power of attorney which expressly appointed counsel to represent it in arbitral proceedings. The Court reasoned that German law applies by virtue of the more-favorable-right provision under Article VII(1) NYC, and does not require the party seeking enforcement to also supply the arbitration agreement. In the Court's view, only an essential procedural defect constitutes grounds for refusal of enforcement under Article V(1)(d) NYC, and "essential" in this context means that it caused the tribunal to reach a different decision. Finally, the Court found that the fact that the the Syrian tribunal did not apply German law could not amount to a violation of public policy under Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=276&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Düsseldorf (Higher Regional Court of Düsseldorf) Date 21 July 2004 Case number VI Sch (Kart) 1/02 Applicable NYC Provisions V | IV | V(2)(b) | IV(1)(b) | IV(1)(a) Source DIS
Languages English Summary The Respondent entered into Lead Agreement with the Applicant which granted the Applicant an exclusive global license for the construction and sale of heat exchangers and under which the Respondent also agreed to stop producing and selling the licensed objects itself. Subsequently, as per the Lead Agreement, both parties entered into a separate license agreement and a side agreement, which stated that all agreements concluded in connection with the Lead Agreement would only be declaratory in nature, with the parties’ commitments being limited to those made in the Lead Agreement. The Lead Agreement and the license agreement both contained identical arbitration clauses. A dispute arose and the Applicant alleged that the Respondent had violated the terms of the exclusive global license and its commitment not to compete with the Respondent. The Applicant initiated arbitration before an arbitral tribunal constituted under the Rules of the International Chamber of Commerce (ICC Rules) with the seat in Zurich, which rendered an award that was largely in the Applicant’s favor. The Applicant sought to enforce the award before the Oberlandesgericht (Higher Regional Court) Düsseldorf, which the Respondent opposed, arguing that the license agreement was a sham and that, in any case, it was void since it did not meet the form requirements of German competition law. In addition, the Respondent alleged that enforcement should be rejected under Article V(2)(b) NYC because the agreement violated European and German competition law. The Oberlandesgericht declared the award enforceable, holding that the Applicant had met the formal requirements set out in Article IV(1) NYC read with Section 1064(1) of the German Civil Procedure Code, as it had submitted certified copies of the award and of the arbitration agreement as per Article IV(1)(a) and IV(1)(b) NYC. The Oberlandesgericht found that even if the arbitration clauses were void, this would not prevent recognition and enforcement of the arbitral award since the Respondent had participated in the merits phase of the arbitration. The Oberlandesgericht found that the German competition law provisions cited by the Respondent were not applicable. With respect to the alleged violation of German public policy, the Oberlandesgericht clarified that it would not have any discretion to refuse enforcement under Article V(2)(b) NYC if the arbitral award indeed violated German public policy. It said that it was not bound by the factual or legal findings of the arbitral tribunal in determining whether the award violated public policy. It also held that the burden fell upon the Respondent to prove that any of the grounds for refusal of enforcement were applicable. Regarding public policy, it stated that an award violated German public policy when it violated the fundamental principles of the legal, economic and/or social order of the state in such an obvious and significant manner that the decision was unacceptable under basic national principles. Therefore, the recognition of a foreign arbitral award was not subject to any different, and in particular, any less restrictive or further reaching requirements than foreign court judgments. The Oberlandesgericht said that while the fundamental provisions of German competition law and the provisions of European competition law, which are directly effective in Germany, formed part of German public policy, provisions which served merely a practical purpose, such as the form requirement under Section 34 of the German Law Against Restraints on Competition applicable at that time, were not part of public policy. It clarified that the relevant time for assessing a violation of German public policy was at the time of enforcement, and not the time at which the award was rendered or the parties had concluded the agreements in question. Finally, the Oberlandesgericht rejected the argument that there had been any public policy violations, stating that the Respondent had failed to prove the facts on which its objection was based. see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / c. Mandatory rules as public policy / §19
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §57
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a. The public policy exception under the Convention / §9
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §32
- 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=1317&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 05 July 2004 Case number 4 Z Sch 09/04 Applicable NYC Provisions VII | VII(1) Source DIS
Summary The Claimant, an Austrian lawyer, commenced arbitration in Austria against the Defendant in connection its alleged non-payment of legal fees. The Parties reached a settlement at the hearing. When the Defendant failed to pay the agreed amount, the Claimant sought enforcement of the settlement agreement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement pursuant to the 1959 Austrian-German Treaty, which applies to settlements reached before an arbitral tribunal. The Court considered that the Claimant had also complied with the formal requirements for enforcement under the NYC. The less stringent German requirements for enforcement applied in accordance with the more-favorable-right provision at Article VII(1) NYC. The Claimant had supplied a copy of the minutes of the arbitral hearing where the settlement agreement was concluded and recorded, which was certified by the Tyrol Bar Association and the president of the arbitral tribunal. The authenticity of the settlement agreement reached in the presence of both Parties was undisputed. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=275&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 23 April 2004 Case number 9 Sch 01/03 Applicable NYC Provisions VII | V | VII(1) | V(2)(b) Source DIS Summary This case concerned one of three awards rendered in 2002 by International Commercial Arbitration Court in Russian Federation (ICAC). The dispute involved a sales contract concluded by the Parties. The Oberlandesgericht (Higher Regional Court) Köln granted enforcement, finding that under Article VII(1) NYC, the more favourable provisions of German law apply, pursuant to which there is no requirement for the Claimant to submit a translation of the award. There was no violation of public policy justifying non-recognition under Article V(2)(b) NYC. The Oberlandesgericht considered that there must be a causal link between the award and the violation of public policy, i.e., a violation of minimum standards of procedural justice and the award must be based on that violation. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=274&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 01 March 2004 Case number 11 Sch 01/04 Applicable NYC Provisions IV Source DIS Summary The Claimant requested the Oberlandesgericht (Higher Regional Court) Celle to enforce an award rendered by an Arbitration Court attached to the Economic Chamber of the Czech Republic. The Court granted enforcement, finding that the Claimant had duly supplied documents required by Article IV NYC (namely the authenticated original award, the original arbitration agreement, and a German translation of the award prepared by a certified Czech-German translator). The Defendant did not raise any grounds against the enforcement under Article V(1) NYC. There were no grounds for the Court to refuse enforcement propiu motu under Article V(2) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=273&opac_view=6 Attachment (1)
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