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Peter Huber / Schiedsvereinbarungen im Scheidungsrecht / SchiedsVZ 280 (2004) - 2004
Author(s) Peter Huber Source SchiedsVZ 280 (2004) 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=4206&opac_view=6
Germany / 20 November 2003 / Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) / 4 Z Sch 17/03
Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 20 November 2003 Case number 4 Z Sch 17/03 Applicable NYC Provisions V | V(2)(b) Source DIS
Summary The Parties concluded a supply contract providing for the arbitration of disputes at the Court of International Commercial Arbitration at the Chamber of Commerce and Industry of the Russian Federation (ICAC). The Claimant commenced arbitration and at arbitral tribunal's suggestion, the Parties entered into settlement negotiations and agreed that the Claimant would withdraw proceedings if the Defendant paid the amounts in dispute. The Defendant duly paid the amounts, but the Claimant did not terminate the proceedings (concealing the Parties' settlement) and obtained a favorable award. The Claimant then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) denied enforcement pursuant to Article V(2)(b) NYC. It reasoned that even under the less stringent requirements of international public policy, the concealment of a settlement agreement constitutes a gross violation of the basic principles of German law. The jurisprudence of the Federal Supreme Court holding that a party is estopped from raising objections against the award that should have been raised in the course of the arbitration does not apply to public policy objections under Article V(2)(b) NYC. The violation in this case went beyond a mere procedural defect. The Court reasoned that if the award were enforced, the principle of contractual good faith would be violated in a manner that is inconsistent with the German legal system. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=271&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 20 November 2003 Case number 8 Sch 02/03 Applicable NYC Provisions V | VI | V(1)(e) | V(2)(b) Source DIS Summary In 1999, the Parties concluded a five-year supply contract containing a clause for the arbitration of disputes at the Stockholm Chamber of Commerce (SCC) and the application of German law. The Parties entered into additional oral agreements pursuant to which the Defendant assumed further obligations. A dispute arose in respect of the Defendant's performance under the terms of the oral agreements, and the Claimant obtained a favorable award from a sole arbitrator at the SCC. The Defendant initiated set-aside proceedings in Sweden, which were pending at the time the Claimant sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Celle. The Oberlandesgericht Celle granted enforcement. It considered that the Defendant failed to prove the grounds for non-recognition under Article V(1)(e) NYC, as the pending action for annulment in Sweden had no impact on award's finality. It further ruled that the Defendant failed to make out any grounds for non-recognition under Article V(2)(b) NYC. The Oberlandesgericht rejected that the proceedings should be stayed pursuant to Article VI NYC. Based on the evidence before it, it considered that the prospects of the success of Defendant's request for annulment were entirely uncertain. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=272&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 06 October 2003 Case number 16 W 35/02 Applicable NYC Provisions III Source DIS Summary A German Investor and a Russian State Agency established a joint stock company under Russian law. The Investor initiated an arbitration at the Stockholm Chamber of Commerce under the Germany-Russia Bilateral Investment Treaty and obtained favorable award. Russia commenced setting-aside proceedings against the award in Sweden. The Stockholm Court of First Instance denied the annulment request. Its decision was upheld by the Svea Court of Appeal. The Investor obtained enforcement in Germany from the Kammergericht (Higher Regional Court Berlin). It then sought an execution order from the Landgericht (Regional Court) Köln, which was vacated by the same Court following an objection by the Russia on the grounds that it had not waived its immunity in respect of those claims. The Investor appealed to the Oberlandesgericht Köln (Higher Regional Court Cologne). The Oberlandesgericht Köln dismissed the appeal, finding that the enforcement order was invalid. It reasoned that Article III NYC, which provides that substantially equal requirements shall apply to the enforcement of foreign and domestic awards, does not imply a waiver of sovereign immunity as it concerns execution on certain assets. The Court added that, as a consequence of the equal-treatment requirement under Article III NYC, general rules of international law that are part of the German legal system apply to the enforcement of foreign awards. According to these rules, claims concerning sovereign aims are immune from execution. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=270&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 25 September 2003 Case number III ZB 68/02 Applicable NYC Provisions VII | IV | VII(1) | IV(1) Source DIS Summary The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement of an award rendered in Sweden. The Claimants had submitted a certified copy of the agreement containing the arbitration clause and the arbitral award, as well as certified translations of the arbitration clause and the arbitral award into German. The Defendant filed an appeal on a points of law before the Bundesgerichtshof (Federal Supreme Court) alleging that the Oberlandesgericht Hamburg erred in relying directly on the German provisions concerning the formal requirements for enforcement, rather than those requirements under the NYC. The Bundesgerichtshof held that Article VII(1) NYC allows states to apply domestic provisions regarding the enforcement of foreign awards to the extent that they are more favorable than the provisions of the NYC. This was the case here since there were no specific requirements for the certification of the translations of the arbitration agreement or the arbitral award under German law. see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / d. Multiple enforcement regimes permissible / §13
- 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) / b. Documents specified under article IV(2) / §20
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=269&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 18 September 2003 Case number 8 Sch 12/02 Applicable NYC Provisions VII | V | II | VII(1) | V(1)(a) | II(1) Source DIS Summary The Parties concluded a sales contract. The Defendant allegedly refused to pay part of contract price and the Claimant commenced arbitration in London. The London Commercial Court appointed a sole arbitrator after the parties failed to reach an agreement concerning the constitution of the tribunal. The arbitrator assumed jurisdiction over the dispute based on the INTERORE general conditions of contract, which contained an arbitration clause. The Claimant obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding no valid arbitration agreement within the meaning of Article II of the NYC, as the parties had neither signed nor mentioned the INTERORE conditions when concluding the sales contract at issue. The writing requirement under the NYC was not superseded by the requirements under German law pursuant to Article VII(1) NYC, since German law requires at least that the Claimant make a written reference to its general conditions when concluding a contract. The Court reasoned that the existence and formal validity of the arbitration agreement should to be assessed independently by the enforcement court when examining the grounds for refusal at Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=268&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 04 September 2003 Case number 8 Sch 11/02 Applicable NYC Provisions V | II | II(1) Source DIS Summary The Claimant sought enforcement in Germany of an award rendered pursuant to a clause providing for arbitration at the China International Economic and Trade Arbitration Commission (CIETAC). The contract had been signed signed by the Defendant's agent for the Asian market with the title "executive director". The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding that it was not bound by the legal and factual findings of a foreign arbitral tribunal regarding its competence, especially with regard to the question of the validity of an arbitration agreement. While in principle, the party opposing enforcement has the burden to prove grounds for refusal under Article V NYC, the party seeking enforcement has the burden to prove the "pre-condition for the existence of the grounds for such refusal", i.e. that the parties have concluded an agreement pursuant to Article II NYC. The Court found that the Claimant had not supplied an "agreement in writing" within the meaning of Article II(1) NYC, as the printout of a fax supplied the Claimant containing the contract was largely illegible, and the "readable copy" of the contract had not been signed. The Claimant had not met its burden of proving that it had validly concluded a contract with the Defendant. The Court reasoned that Chinese law, which does not differ substantially from German law, should be applied to determine whether the agent had a power of attorney, and that under the applicable law the Claimant had no reason to believe that the "agent" had such authority. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=267&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 15 July 2003 Case number 16 Sch 01/03 Applicable NYC Provisions VII | VII(1) Source DIS Summary The Parties concluded two sales contracts which each contained a clause for arbitration of all disputes at the International Commercial Arbitral Tribunal at the Chamber of Commerce and Industry of Ukraine. A dispute arose concerning the Buyer's performance. The Seller initiated arbitration proceedings and the Buyer did not appear. The Seller obbtained a favorable award and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Schleswig. The Oberlandesgericht Schleswig granted enforcement, finding that the Seller had met the formal requirements for seeking enforcement under German law, which applied on the basis of the most-favorable-right provision at Article VII(1) NYC. It considered that there were no grounds for refusal to be examined ex officio. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=266&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 24 January 2003 Case number 11 Sch 06/01 Applicable NYC Provisions V | V(1)(e) Source DIS
Summary The Parties concluded a contract of sale for three shipments of coffee. The Buyer had sent a signed confirmation of contract to the Seller, which included standard terms and conditions and provided for the arbitration of disputes at the place determined in the contract, according to the rules and usages of the local coffee trade organization and that the contract be interpreted according to the laws of the state in which the agreed place of arbitration was located. The confirmation provided for “Arbitration: Hamburg”. The confirmation further contained a request to return a signed copy the the Buyer for acceptance, which the Buyer did not do. A dispute arose between the Parties and the Buyer obtained a favorable award from an arbitral tribunal in Hamburg. It sought enforcement by a Polish court, which denied enforcement on the grounds that there was no valid arbitration agreement between the Parties. The Claimant then sought enforcement in Germany before the Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg). The Hanseatisches Oberlandesgericht granted enforcement, holding that the Polish decision did not impact its decision, as it concerned procedural rather than substantive matters. It reasoned that German courts need only take into account the setting aside or suspension of an award in the country of origin as a possible ground for refusal under Article V(1)(e) NYC. It further held that the Parties' choice of German law as applicable to contract equally applied to the determination of the validity of the arbitration agreement. Under German law, the Parties had validly agreed to arbitrate. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=265&opac_view=6 Attachment (1)
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Author(s) Stefan Kröll ; Marc-Oliver Heidkamp Source 18(3) Mealey's International Arbitration Report 28 (2003) 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 : 34947790 ISBN 3-452-24909-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3020&opac_view=6
Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 12 December 2002 Case number 4 Z Sch 16/02 Applicable NYC Provisions VII | II | VII(1) | II(2) | II(1) Summary The Parties entered into negotiations in September 1999 for the export of products from Yugoslavia to Germany. The Claimant allegedly informed the Defendant by telephone that its general conditions provided for arbitration before the Foreign Trade Court of Arbitration (at the Yugloslav Chamber of Commerce). Further negotiations followed and the Claimant made three deliveries. The Claimant drew up the contracts by photocopying its contractual details onto a blank sheet bearing the Defendant's letterhead. The letter contained the Defendant's signature and seal as well as the Claimant's own signature and seal. The Contracts were faxed to the Defendant, who neither confirmed nor contested them. A dispute arose when the Defendant refused to pay the purchase price for goods that were allegedly unsaleable. The Claimant initiated arbitration in Belgrade, the Defendant failed to appear and an award was rendered in the Claimant's favor. The Bayerisches Oberstes Landesgericht (Higher Regional Court Bavaria) denied enforcement, finding that the requirements under Article II(2) NYC had been not fulfilled as there was no "agreement in writing" as neither the requirement of "signature" nor "exchange of letters or telegrams" had been fulfilled. According to the Court, the essential factor in exchange of written statements under the NYC is mutuality, which was lacking in the faxed contracts. It considered that in principle, German law should apply to this question as a result of the the most-favored-right rule under Article VII(1) NYC. However, German law requirements and requirements under the NYC were equivalent. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=264&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 22 November 2002 Case number 4 Z Sch 13/02 Applicable NYC Provisions V | VI | V(1)(e) Source DIS
Summary The Claimant sought enforcement of an arbitral award rendered in the United States and confirmed by the Superior Court of California. The Defendant had filed an appeal against the California decision, which was still pending at the time the present decision was rendered. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, reasoning that an award confirmed by a California State Court was enforceable and binding and should not be denied enforcement under Article V(1)(e) NYC. The Court found that the annulment proceedings commenced by the Defendant did not hinder enforcement as they only constituted means to have the award set aside a posteriori, and could not interfere with the enforceability of the award. The Court further found that the Defendant had failed to prove the requirements for grounds for refusal under Articles V(1)(b) and (c) NYC. Taking into account the absence of grounds for refusal or setting aside under Article V, the Court reasoned the pending appeal proceeding in California would not likely succeed and decided that the Defendant's request for suspension under Article VI NYC should be denied. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=263&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 September 2002 Case number 26 W 101/02 Applicable NYC Provisions V | V(1)(e) Source DIS Summary The Kammergericht (Higher Regional Court Berlin) granted enforcement of an arbitral award rendered by the International Chamber of Commerce (ICC) in Sweden, in favor of an Investor against an agency of the Russian Federation. A temporary stay of execution was ordered by a Stockholm court. The Investor brought attachment proceedings before the Landgericht (Regional Court) Frankfurt. The Russian Federation appealed, arguing that the award was not final and binding and should therefore be denied enforcement pursuant to Article V(1)(e) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt dismissed the appeal, holding that the Russian Federation was estopped from raising that the award was not final and binding, as it had not raised this objection in the previous enforcement proceedings before the Kammergericht. The Oberlandesgericht also rejected that the execution of the award would violate the principle of sovereign immunity. It considered that the Russian Federation had failed to prove that the accounts that had been attached were earmarked for sovereign aims. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=262&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Brandenburg Date 13 June 2002 Case number 8 Sch 02/01 Applicable NYC Provisions V | II | II(2) | II(1) Source DIS Summary The Claimant sought payment from the Defendant, who denied it had contracted with the Claimant, arguing that the Claimant had sent an offer to Party X, which was not its agent, and that Party Y was in fact the Claimant's contractual partner. The Claimant commenced arbitration in Helsinski based on general freight forwarding conditions contained in its offer. It obtained award in its favour and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg denied enforcement on the several grounds, despite the fact that the Claimant had duly supplied the original award pursuant to Article IV(1) NYC. The Oberlandesgericht held that the existence of an arbitration agreement in writing is a prerequisite for enforcement under Article II(2) NYC, and must be supplied by the party seeking enforcement. It reasoned that burden of proof provision in Article V(1) NYC does not apply where, as here, the Defendant does not rely on the grounds of invalidity at Article V(1)(a). There was no written statement by the Defendant accepting the arbitration clause, so the Claimant had not fulfilled the conditions of Article II(2) NYC. Even applying German law on the basis of the more favorable right provision at Article VII(1) NYC, there was no arbitration agreement between the Parties. The Oberlandesgericht reasoned that it did not need to decide whether the application of Article VII(1) NYC meant that the Claimant could rely on an arbitration agreement which did not meet the formal requirements of Article II(2) NYC, since the Claimant had not supplied a valid arbitration agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=261&opac_view=6 Attachment (1)
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Author(s) Stefan Kröll Source 5(5) International Arbitration Law Review 160 (2002) 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=3019&opac_view=6
Country Germany Court Germany, Oberlandesgericht Stuttgart Date 06 December 2001 Case number 1 Sch 12/01 Applicable NYC Provisions V | IV | V(1)(c) Source DIS Summary The Parties concluded a sales contract providing for the application of Italian law and the arbitration of all disputes by a sole arbitrator under the rules of the International Chamber of Commerce (ICC). The Seller ceded the contract to its parent company. A dispute arose when the parent company terminated the contract. The Seller obtained a favorable ICC award, with the seat of the arbitration in Italy but hearings in Switzerland. The Seller then sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Stuttgart. The Oberlandesgericht Stuttgart granted enforcement, finding that the request satisfied the requirements of Article IV NYC, and that there were no grounds for non-enforcement under Article V NYC. The Oberlandesgericht held that the dispute was not outside of scope of the arbitration clause merely because contract has been ceded to parent company and that the termination of the contract had no effect on the validity of the arbitration clause for the purposes of Article V(1)(c) NYC. It noted the Parties had entered into a further agreement to arbitrate by signing ICC Terms of Reference. Enforcement of the arbitral award must not be denied on this ground because the award granted the Claimant more than it claimed. It held that the Tribunal had jurisdiction even if hearings were held in Switzerland and not in Italy, since this was not a ground for non-enforcement listed in Article V(1) NYC. It found that there was no violation of due process justifying non-enforcement under Article V(2)(b). Contrary to the Buyer's contention, the Tribunal was not required to explicitly address all arguments of the losing party in its reasons. Nor was there a violation of due process because the arbitrator deemed certain facts to be irrelevant. The length of the proceedings could not justify non-enforcement under Article V(1)(c) NYC because the Buyer did not argue that time limit set in arbitration clause had been exceeded. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=259&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 22 November 2001 Case number 1 Sch 03/00 Applicable NYC Provisions VII | V | II | VII(1) | V(2)(b) | II(1) Source DIS Summary The Parties negotiated a sales contract in 1997. The Claimant allegedly sent a fax to the Defendant confirming the sales agreement and mentioning “arbitration to be subject to LME (London Metal Exchange) rules and regulations”. Then, the Claimant allegedly sent a fax confirming further sales and containing clause reading "arbitration by LME under English law normal force majeure terms to rule." The original letter was allegedly sent to the Defendant by mail. The Defendant refused to accept or pay for goods shipped by the Claimant. The Claimant commenced arbitration at the LME and obtained favorable award. The award was later declared enforceable by the High Court in London, which also denied the Defendant's motion to set aside. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Rostock denied enforcement, finding that the Claimant had failed to comply with the formal requirement under Article IV(1) NYC to provide the original arbitration agreement or certified copy thereof. In its reasoning, the Claimant could not rely on less stringent requirements of German law - according to which the enforcement of domestic award does not require supplying an arbitration agreement - because international treaties supersede German law on questions related to foreign awards pursuant to Section 1064(III) of the German Code of Civil Procedure. In any event, the more-favorable-right rule under Article VII(1) NYC does not concern formal requirements under the NYC. The Court further considered that there existed grounds for non-enforcement under Article V(1)(a) NYC, since there was no valid arbitration agreement between the Parties within the meaning of Article II NYC. Even if the more-favorable-right rule applied as a matter of principle, in the case at hand, the requirements under German law had not been met. The Court further considered that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) because it would entail that the Defendant had not submitted to the judgment of the arbitral tribunal by its free will. Finally, the Court found that the Claimant was not estopped from raising grounds for non-enforcement because it did not challenge the award for lack of jurisdiction before the juge d'appui. In this case, the tribunal had assumed jurisdiction in an arbitrary manner and without any justification in the parties' agreement. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=258&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Celle Date 02 October 2001 Case number 8 Sch 3/01 Applicable NYC Provisions IV | II | V | V(1)(b) Source Original decision obtained from the registry of the Oberlandesgericht Celle Languages English Summary The parties concluded a Frame Contract which provided that disputes should be resolved by “the International Commercial Arbitration Court at the Chamber of Commerce in Russia (ICAC) or by the International Court in …”. A dispute arose between the parties and the Applicant terminated the contract and initiated arbitration proceedings at the International Commercial Arbitration Court of the Chamber of Commerce in Russia. The arbitral tribunal rendered an award in favor of the Applicant who then sought enforcement in Germany. The Respondent opposed enforcement, asserting that (i) it had not been properly heard, (ii) that the ICAC had no jurisdiction to hear the case, (iii) that the entire contractual relationship had been cancelled by the Applicant, and (iv) while the contract had been concluded in both Russian and German, all correspondence from the arbitral tribunal had been exclusively in Russian, which the Respondent could not understand. The Oberlandesgericht (Higher Regional Court) Celle declared the award enforceable, finding that the Applicant met the formal requirements set out in Article IV NYC. The Oberlandesgericht dismissed the Respondent’s contentions that the Russian arbitral institution was not competent and that its jurisdiction had not validly been agreed upon. It found that the Frame Contract contained a permissible and clear arbitration agreement, in compliance with Article II NYC, since the parties had agreed that they could either go before the ICAC or the “International Court in…”. It held that the Applicant had properly made use of the opportunity to turn to the ICAC. The Oberlandesgericht also found that the tribunal’s jurisdiction was not affected by the termination of the contractual relationship by the Applicant because the broadly worded arbitration clause also covered disputes regarding termination of the contract. The Oberlandesgericht dismissed the Respondent’s contention based on Article V(1)(b) NYC that it had not been properly heard during the arbitration and that it had not been given sufficient opportunity to defend itself, finding that it was for the Applicant to obtain an interpreter/translator to be able to fully participate in the arbitral proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1331&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Stuttgart Date 20 September 2001 Case number 1 Sch 14/01 Applicable NYC Provisions V Source DIS Summary The Parties concluded a sales contract providing for arbitration in Belarus. The Seller obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Stuttgart subsequently received a letter through the Higher Commercial Court of Belarus asking permission to execute the award under the NYC. The Buyer argued that there was no indication of the legitimacy of the person who had signed the letter or of the nature of his power to represent the Seller. The Oberlandesgericht Stuttgart granted enforcement, holding that a request for permission to execute an award under the NYC is equivalent to a request for enforcement provided under German law. The Court considered that it appeared from the letter that the Seller was the applicant. The Oberlandesgericht deemed that the request was made by the Seller's authorized representative. The Buyer did not raise any grounds for refusal under Article V(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=257&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 22 February 2001 Case number III ZB 71/99 Applicable NYC Provisions V | IV | V(1)(e) | IV(1)(b) | IV(1)(a) Source DIS Summary The Parties concluded a contract containing a clause providing for arbitration before the Maritime Arbitration Commission at the Chamber of Commerce and Industry in Moscow. The Claimant obtained a favorable award. The Defendant sought annulment before the Moscow District Court, which set aside the award. This decision was first affirmed by the Moscow Court of Appeal, and subsequently annulled by the Supreme Court of the Russian Federation and referred back to the Moscow District Court, which finally denied the request for setting aside. In the meantime, the Claimant sought enforcement in Germany but – prior to the annulment of the initial setting aside decision – the Oberlandesgericht (Higher Regional Court) Rostock denied enforcement. The Bundesgerichtshof (Federal Supreme Court) reversed the decision of the Oberlandesgericht Rostock and granted enforcement. The Bundesgerichtshof relied on the Russian decisions ultimately denying Defendant’s request to set aside the award, which had been rendered after the Court of Appeal's decision. It held that the Claimant's submission of a duly certified copy of the arbitral award that reproduced a non-authenticated original award could be deemed to comply with the conditions of Article IV(1)(a) NYC, since the existence and authenticity of the award was undisputed. It further held that the requirement under Article IV(1)(b) NYC can be departed from when the party resisting enforcement does not dispute the alleged contents of the arbitration agreement, as was the case here. Finally, it considered that the grounds for refusal under Article V(1)(e) NYC no longer existed because the arbitral award had become binding on the Parties in the meantime and had not been set aside. affirmed by : affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=256&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 01 February 2001 Case number III ZR 332/99 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties negotiated a charterparty referring to the GENCON General Conditions, which contained an arbitration clause. The Claimant obtained a favourable award from a sole arbitrator and sought enforcement at the Landgericht (Regional Court) Ravensburg, which denied enforcement on the grounds that the sole arbitrator lacked impartiality. The judgment was affirmed by the Oberlandesgericht (Higher Regional Court) Stuttgart, which found that the sole arbitrator had acted on behalf of the Claimant prior to the arbitration, that this could give at least the impression of impartiality, which violated fundamental principles of public policy. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht decision and granted enforcement. It held that the award at issue was a foreign award governed by the NYC. The Court affirmed the lower courts' finding that the Defendant had been duly informed of the arbitration. It considered, however, that the mere fact that a party-appointed arbitrator decided the dispute as a sole arbitrator did not amount to a violation of (international) public policy within the meaning of Article V(2)(b) NYC. According to the Bundesgerichtshof, there must be actual and proven bias rather than an appearance of bias. Furthermore, an objection to enforcement based on bias must first be raised in the country where the award is rendered, unless the Party raising that objection is prevented from doing so. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=255&opac_view=6 Attachment (1)
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Author(s) Albert Jan van den Berg Source Law of International Business and Dispute Settlement the 21st Century – Liber Amicorum Karl-Heinz Böckstiegel, R. Briner, Y. Fortier, K.P. Berger and J. Bredow eds., Carl Heymanns, 783 (2001) 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 : 773191626 ISBN 3-452-24909-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3018&opac_view=6
Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 13 November 2000 Case number 9 Sch 04/00 Applicable NYC Provisions IV | IV(1)(a) Source DIS Summary The Claimant sought enforcement of award rendered on 7 December 1999 in the Russian Federation by the Court of International Commercial Arbitration at the Chamber of Commerce and Industry (ICAC). The Oberlandesgericht (Higher Regional Court) Cologne granted enforcement, holding that the Claimant had fulfilled the formal conditions for enforcement under Article IV NYC by supplying a certified copy of the award and agreement. According to the Oberlandesgericht, Article IV NYC is a provision that purely concerns evidence. Article IV(1)(a) NYC lists the documents through which the authenticity of the award can be proven, if disputed by the party contesting enforcement. In this case, the Claimant was not required to prove the existence and authenticity of the original award, as this was not in dispute. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=254&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 17 August 2000 Case number III ZB 43/99 Applicable NYC Provisions IV | IV(1)(a) Source BGH Summary A German investor commenced arbitration proceedings against the Republic of Poland based on Article 11 of the Germany-Poland Bilateral Investment Treaty (BIT). An award was rendered in Zurich directing the Republic of Poland to pay DM 2.3 million to the Claimant. The Claimant obtained enforcement in Germany from the Oberlandesgericht (Higher Regional Court) Frankfurt. The Republic of Poland appealed to the Bundesgerichtshof (Federal Supreme Court), alleging that the Claimant had failed to meet the requirements of Article IV(1)(a) NYC. The Bundesgerichtshof affirmed the decision of the Oberlandesgericht Frankfurt granting enforcement. According to the Bundesgerichtshof, Article IV NYC is a provision that merely concerns evidence. In this case, Article IV only required that the Claimant supply the award, because the applicable arbitration agreement could be found in the BIT. For a foreign arbitral award to be recognized and declared enforceable in Germany, the deeds listed in Article IV NYC must be provided. In this case, the Claimant was not required to prove the authenticity of the award because the Republic of Poland did not dispute it. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=253&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 11 August 2000 Case number 4 Z Sch 05/00 Applicable NYC Provisions VII | IV | IV(2) | VII(1) Source DIS
Summary The Parties concluded a construction contract and by additional agreement agreed to refer disputes to arbitration in Moscow. The Claimant obtained a favorable award and sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the Claimant had complied with the formal requirements under German law (which applied pursuant to the most-favorable-right provision under Article VII(1) NYC), which requires that the Claimant supply the award or a certified copy thereof together with the request for enforcement. Under German law, the arbitration agreement and the translations mentioned in Article IV(2) NYC need not be supplied. see also :
- IV / 2. ANALYSIS (IV) / 1. GENERAL PRINCIPLES (IV) / b. Documents specified under article IV(2) / §20
- 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=252&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Schleswig Date 30 March 2000 Case number 16 SchH 05/99 Applicable NYC Provisions V | IV | II | V(2)(b) | V(1)(d) | V(1)(a) | IV(1)(b) | II(2) Source DIS Languages English Summary The Defendant purchased goods from the Claimant since 1995. In 1997, the Defendant placed an order and the Claimant confirmed the sale by telefax using its standard form which contained a reference to the General Conditions of Sale printed on the reverse side which on its face contained an arbitration clause providing for arbitration at the Court of Arbitration of the Hungarian Chamber of Commerce. The Claimant only sent the front side of the contract form which the Defendant signed and faxed back to the Claimant. The dispute arose and the Claimant commenced arbitration proceedings. The Court rendered a preliminary award in the Claimant’s favor and thereafter a final award which the Claimant sought to enforce before German Courts. The Oberlandesgericht (Higher Regional Court) Schleswig enforced the award, holding that both the requirements of Article IV NYC and Sections 1061 and 1064 of the ZPO (Zivilprozessordnung) had been met. The Court deemed that the contract form signed by the Defendant and faxed to the Claimant fulfilled the formal requirements of Article II(2) NYC. The Court dismissed the Defendant’s objection based on Article V(1)(a) NYC, by stating that Article V(1)(a) presupposes a formally valid arbitration agreement which the Claimant has the burden to prove. The Court stated that the substantive rule in Article II(2) prevails over any national law “be it more or less strict as to the formal requirements”. Moreover, the Court stressed that the Defendant cannot argue that it was not aware of the arbitration clause printed on the reverse side as the Parties were in ongoing business relationship pursuant to which the Claimant would always use the same form for the conclusion of its contracts with the Defendant. Accordingly, the Court stressed that even if there were no formally valid arbitration agreement, this defect would have been cured since the Defendant failed to object the tribunal’s jurisdiction during the arbitration and thus waived its right to object at a later stage of the proceedings. The Court specified that the prohibition of contradictory behavior is a legal principle that needs to be taken into account within Article II(2). The Court found that the fact that the Defendant did not initiate annulment proceedings before Hungarian Courts did not preclude it from resisting enforcement under Article V(1)(a) . The Court further found that it was not bound by the arbitral tribunal’s finding on jurisdiction and found that under the applicable Hungarian provision, the formal defect was cured when the Defendant entered into the merits of the arbitration claim without objecting the substantive validity of the arbitration agreement. Finally, the Court dismissed alleged violation under Article V(1)(d) NYC, based on the fact that the procedural language of the arbitration was Hungarian, since the Defendant had a Hungarian counsel, and found the award was not contrary to German public order pursuant to Article V(2)(b). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=423&opac_view=6 Attachment (1)
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Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 16 March 2000 Case number 4 Z Sch 50/99 Applicable NYC Provisions V | V(1)(b) Source DIS
Summary The Parties concluded two contracts, both with clauses for the resolution of disputes by arbitration in Moscow. The Claimant commenced arbitration and an oral hearing was held in which the Defendant did not participate. An arbitral tribunal rendered award in the Claimant's favor and the Claimant sought enforcement in Germany pursuant to the NYC and the 1958 German-Russian Treaty on General Issues of Trade and Maritime Shipping. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) denied enforcement, finding that the Defendant had not been duly informed of the arbitration, and that this constituted a violation of due process. The Court reasoned that Russian arbitration law holds that a party is duly informed when it is contacted at its last-known address if no other address can be found after making a reasonable inquiry. In this case, there was no evidence that inquiries had been made to ascertain the Defendant's current address. Although the Defendant did not seek annulment of the award in Russia on the ground of violation of due process, it was not barred from relying on this ground since Article V(1)(b) NYC does not contain a time bar for defenses based on violation of due process. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=250&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 15 February 2000 Case number 9 Sch 13/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary A distribution contract contained a clause for resolution of disputes at the London Court of International Arbitration (LCIA) and for the application of Spanish law. The Distributor obtained a favorable award and the Seller filed a request for annulment with the LCIA, alleging false testimony by Distributor's representatives. This request was pending at time of the enforcement decision in Germany. The Oberlandesgericht Köln (Higher Regional Court Cologne) granted enforcement. It reasoned that even if the Seller's argument that the arbitral tribunal should have applied the Convention on the International Sale of Goods rather than Spanish law were correct, there would be no violation of German international public policy justifying non-enforcement under Article V(2)(b) NYC. According to the Oberlandesgericht, an award may only be reviewed by the enforcing court to ascertain whether it violates the elementary principles of the German legal system. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=249&opac_view=6 Attachment (1)
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Country Germany Court Germany, Oberlandesgericht Rostock Date 28 October 1999 Case number 1 Sch 03/99 Applicable NYC Provisions VII | V | VII(1) | V(1)(e) Source DIS Summary The Claimant sought to enforce in Germany an award rendered by the Maritime Arbitration Commission in Moscow. In the meantime, the award was set aside by the Moscow City Court and Moscow Court of Appeal. The Oberlandesgericht (Higher Regional Court) Rostock held that that German law does not condition the admissibility of a request for recognition on the submission of an arbitration clause, and so this more favorable law applied pursuant to Article VII(1) NYC. The Oberlandesgericht nevertheless denied recognition pursuant to Article V(1)(e) NYC, holding that a declaration of enforcement requires that the foreign award has become binding according to the law applicable to it, and that there are no further means of appeal against it before appellate arbitral tribunals or State courts. Here, the award was no longer "binding" because it had been set aside in its State of rendition. Even though the Russian court decisions were subject to further appeal, this was irrrelevant according to the second alternative under Article V(1)(e) NYC (..."or suspended"). Decision reversed by Bundesgerichtshof (Federal Supreme Court) on 22 February 2001 (see link below). affirmed by : affirms : see also :
- VII / ARTICLE VII(1) / 2. ANALYSIS (ARTICLE VII(1)) / c. Domestic law more favourable than article V(1)(e) / §47
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / c. Whether certification must be of an authenticated original award / §60
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §53
- IV / 2. ANALYSIS (IV) / ARTICLE IV(1)(a) / b. Competent authority / §54
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=247&opac_view=6 Attachment (1)
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Country Germany Court Germany, Hanseatisches Oberlandesgericht Bremen Date 30 September 1999 Case number (2) Sch 04/99 Applicable NYC Provisions V | IV | V(2)(b) | V(1)(d) | V(1)(c) | V(1)(b) Source DIS Languages English Summary The parties were both shareholders in a Turkish limited liability company whose bylaws contained an arbitration agreement. The Applicant initiated arbitration proceedings at the Arbitral Commission of the Istanbul Chamber of Commerce, which issued an award in its favor. Shortly before the issuance of the award, the Respondent had filed an action at the local court of Istanbul requesting the court to declare that the arbitral tribunal lacked jurisdiction. Both the local court and the Court of Cassation dismissed the Respondent’s action. The Respondent also sought annulment of the arbitral award on the grounds that the arbitral tribunal had rendered its decision without awaiting the outcome of the decision of the state courts, which was granted by the Turkish Court of Cassation. The Applicant then initiated new arbitration proceedings requesting that the Respondent be ordered to make payment in accordance with the first award. The newly constituted arbitral tribunal issued a second award in the Applicant’s favor. The Respondent’s application to annul the second award was rejected by the Turkish Court of Cassation. The Applicant sought enforcement of the second award in Germany, which the Respondent opposed arguing that: (i) it was not given an opportunity to present its case under Article V(1)(b) NYC; (ii) that pursuant to Article V(1)(c) NYC the dispute was not covered under the arbitration agreement as the arbitration agreement applied only to disputes involving the company Atlanata Tuerkiye Ltd. Sireketi and the arbitral tribunal had misinterpreted the arbitration agreement; (iii) that under Article V(1)(d) NYC, the arbitral proceedings did not comply with the provisions of the Turkish Code of Civil Procedure which was the law of the country in which the arbitration is seated ; and (iv) that the recognition and enforcement of the arbitral award violated German public policy (Article V(2)(b) NYC). The Hanseatisches Oberlandesgericht (Higher Regional Court) Bremen granted leave to enforce the second arbitral award. It found that the formal requirements under Article IV NYC had been met. It then addressed the grounds for refusal of enforcement that the Respondent had raised. The Hanseatisches Oberlandesgericht held that the Respondent´s right to present its case under Article V(1)(b) NYC had not been violated since it had been given the opportunity to present, and indeed had presented, its defenses in both the first and second arbitral proceedings. To the extent that the arbitral tribunal had disregarded any defenses raised by the Respondent, this could merely be relevant under the aspect of a potential violation of the right to be heard (under Article V(2)(b) NYC). The Oberlandesgericht also rejected the Respondent’s defense under Article V(1)(c) NYC. It held that disputes regarding the present company were covered under the arbitration agreement because the company was not a different enterprise but had merely changed its name. In addition, it rejected the Respondent’s argument that the Turkish courts had misinterpreted the arbitration agreement holding that under the principle of automatic recognition of foreign courts the German courts were bound by the decision of the Turkish courts, which had conclusively confirmed the jurisdiction of the arbitral tribunal. With respect to the Respondent´s allegations under Article V(1)(d) NYC that the arbitral tribunal did not decide in accordance with the Turkish Code of Civil Procedure, the Hanseatisches Oberlandesgericht stated that by agreeing on the Arbitral Commission of the Istanbul Chamber of Commerce and Industry, the parties also agreed on the application of its Arbitration Rules and that the arbitral tribunal had conducted its proceedings in compliance with such rules. The Hanseatisches Oberlandesgericht further dismissed the Respondent´s argument that the enforcement of the award violated German public policy under Article V(2)(b) NYC because the arbitral tribunal had allegedly not considered certain arguments and evidence submitted by the Respondent. It stated that a violation of due process could only have occurred in the case where the relevant evidence could have influenced the outcome of the proceedings. Moreover, it clarified that German international public policy was violated only when the “decision of the foreign arbitral tribunal was rendered in proceedings that were to such an extent at odds with basic principles of German procedural law, that in the German legal system the decision cannot be deemed to have been rendered in proper legal proceedings because of a grave defect that affects the principles of public and economic life”. It further noted that, since international arbitral tribunals are composed of arbitrators with different domestic legal backgrounds, the requirements regarding the extent to which an arbitral award discusses the respective parties’ arguments as well as regarding the overall reasoning of the decision were lower and only needed to meet the more lenient requirements of German international public policy. Moreover, the Hanseatisches Oberlandesgericht also rejected the Respondent’s argument that the arbitral tribunal had wrongly concluded that the Applicant’s claims were not time-barred. It reasoned that it could only assess whether an arbitral award had correctly applied the substantive law if it were determinative of whether the recognition of the arbitral award violated public policy. However, it found, that there was no ground to assume a violation of public policy in the present circumstances since that would mean that the application of the relevant Turkish substantive law was in such stark contrast to the fundamental principles of German law and the perceptions of justice contained therein that it would be intolerable under domestic standards. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1332&opac_view=6
