Available documents (144)
sorted by (Publication date descending, Resource ascending) Add to selection
Quick view
Refine your search
Germany / 02 September 1999 / Oberlandesgericht Brandenburg / 8 Sch 01/99
Country Germany Court Germany, Oberlandesgericht Brandenburg Date 02 September 1999 Case number 8 Sch 01/99 Applicable NYC Provisions V | V(2)(b) Source DIS Summary The Parties concluded a contract of sale containing a clause providing for arbitration before the Court of International Arbitration in Kiev. Bankruptcy proceedings were subsequently commenced against the Buyer in July 1998. In October 1998, the Seller obtained a favorable award and sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Brandenburg enforced the award, finding that the enforcement proceedings were unaffected by the Buyer's bankruptcy, because the declaration of enforceability of a foreign arbitral award is not an executory measure but rather a preliminary measure having no executory effect. The Oberlandesgericht further found that there were no grounds for refusal under Article V(2)(b) NYC. There was no violation of German public policy in this case, as it did not suffice for German substantive public policy to be violated that a German court, if it had decided the dispute, would have reached a different conclusion based on German mandatory law. According to the Oberlandesgericht, for there to be a violation of public policy, the conclusion reached by applying foreign law should contrast in such a manner with the fundamental principles of German law and principles of justice contained therein as to appear unacceptable from a domestic point of view. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=245&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Schleswig Date 24 June 1999 Case number 16 SchH 01/99 Applicable NYC Provisions V | V(2)(b) | V(1)(c) | V(1)(a) Source DIS Summary The Parties entered into a five-year contract containing a clause for arbitration at the International Chamber of Commerce (ICC). The Defendant terminated the contract and the Claimant, a successor to a State enterprise that had signed the arbitration agreement, obtained a favorable award from a sole ICC arbitrator. In the course of the arbitration, the ICC had dismissed the Defendant's challenge to the sole arbitrator for bias. The Claimant sought to enforce the award in Germany. The Oberlandesgericht (Higher Regional Court) Schleswig granted enforcement. It held that there were no grounds for non-enforcement under Article V(1)(a) NYC, as it was bound by the arbitrator's finding on legal and factual grounds that the Claimant was a successor to the signatory of the agreement. Nor were there grounds for non-enforcement under Article V(1)(c) NYC, as it was equally bound by the arbitrator's finding that the Claimant's claim for payment was covered by the arbitration agreement, and this argument could not be raised in enforcement proceedings. According to the Court, there had been no violation of due process justifying non-enforcement under Article V(1)(b) NYC or bias justifying non-enforcement under Article V(1)(d) NYC. Nor was there any violation of public policy under Article V(2)(b) NYC. It reasoned that the recognition of foreign awards is subject to a less stringent regime than domestic awards because there is a distinction between international and domestic public policy. The recognition of foreign arbitral award is to be denied only in instances of obvious and grave defects that affect fundamental legal principles. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=244&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 24 February 1999 Parties N/A Case number 24/02/1999 Applicable NYC Provisions V Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4136&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 13 January 1999 Case number 11 Sch 06/98 Applicable NYC Provisions V | V(2)(b) Source DIS Summary In Spring 1992, the Claimant negotiated a sales contract with Company X. During negotiations preceding the sale, the general manager of Company X allegedly received a copy of the Claimant's general conditions of sale, which contained an arbitration clause providing for arbitration at the International Chamber of Commerce (ICC). By confirmation of order in May 1992, the sale was concluded between the Claimant and the first Defendant, who is a general partner in the second Defendant. The Claimant allegedly enclosed its conditions with its confirmation of order. The Claimant then sold other goods to the first Defendant and attached its general conditions to the confirmations for these sales. A dispute arose between the parties when the Defendants alleged that the product was defective and refused to pay part of the sales price. The Claimant obtained a favorable ICC award for damages amounting to unpaid sale price, and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Oberlandesgericht Dresden granted enforcement, finding that no grounds for refusal under Article V(2)(b) NYC existed. Although it considered that German law prohibits an agreement for lump sum damages in general conditions of sale, in this case lump sum damages were permitted under the law applicable to the dispute, and were not so high as to be at odds with German public policy. The Oberlandesgericht reached the same conclusion with respect to the arbitral tribunal's decision on attorney's fees. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=243&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Klaus Sachs / The Enforcement of Awards Nullified in the Country of Origin: The German Perspective / Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Paris, A.J. van den Berg ed., Kluwer Law International, 552 (1999) - 1999
Author(s) Klaus Sachs Source Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9, Paris, A.J. van den Berg ed., Kluwer Law International, 552 (1999) 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 : 42296224 
ISBN 978-90-411-1274-3 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3017&opac_view=6
Country Germany Court Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) Date 20 October 1998 Case number 11 Sch 04/98 Applicable NYC Provisions V | V(1)(b) | V(1)(d) Source DIS Summary The Claimant sought enforcement of an award from the International Commercial Arbitration Court in Russia. The Defendant raised several objections to enforcement pursuant to Article V NYC. The Oberlandesgericht (Higher Regional Court) Dresden granted enforcement. It found that the arbitral tribunal was correctly constituted and rejected the Defendant's objections based on Article V(1)(d) NYC. It further found that the Defendant did not make use of its right to appoint an arbitrator within 30 days, and thereafter the President of the Moscow Chamber of Commerce had complete discretion in the appointment of the arbitrator (and did not have to appoint a German speaker as the Defendant alleged). According to the Court, the Defendant was duly notified of arbitral proceedings and had been accorded a fair hearing, and therefore there were no grounds for non-recognition under Article V(1)(b) NYC. There was no violation of public policy that would require non-enforcement under Article V(2)(b) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=242&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) Date 17 September 1998 Case number BayObLG 4 Z Sch 1/98 Applicable NYC Provisions II | II(2) Summary The Parties concluded a sales contract. The front page was signed referred to the General Conditions of sale on the reverse side as being an integral part of the contract. The General Conditions contained an arbitration clause for resolution of disputes by a sole arbitrator to be appointed by the President of the Law Society in London if the parties failed to agree. A dispute arose between the parties. An appointed arbitrator rendered an award before 1 January 1998, the date on which the New German Arbitration Law entered into force. The Claimant sought enforcement of the English award in Germany after 1 January 1998. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement, finding that the "agreement in writing" requirement under Article II(2) NYC is fulfilled when - as was the case here - the front page of a contract, signed by both parties, refers to an overleaf with General Conditions containing the arbitration clause in small but readable font as being an integral part of the sales contract. On the other hand, a reference to a separate document would not have met these requirements. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=241&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDF
Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 30 July 1998 Case number 6 Sch 3/98 Applicable NYC Provisions V | V(2)(b) | V(1)(b) | V(1)(c) | V(1)(d) Summary The Claimant sought enforcement of an award rendered in London. The Defendant maintained that there is no valid arbitration clause within the meaning of Article II NYC, that the award was vitiated by lack of oral hearing and the granting of post-award interest that had not been claimed. The Hanseatisches Oberlandesgericht (Higher Regional Court) Hamburg granted enforcement, holding that parties validly concluded agreement by exchange of telefaxes. It reasoned that there were no grounds for refusal under Article V(1)(b) NYC, as the Defendant had been duly informed of the proceedings and the arbitral tribunal had otherwise complied with the requirements of due process. The Court reasoned that arbitral rules provide that decision could be rendered without oral hearing, so there were no grounds for refusal under Article V(1)(d) NYC. An arbitral tribunal can, at its discretion, award interest and not exceed its authority in the sense of Article V(1)(c) NYC. The Court held that an award could be refused enforcement under Article V(2)(b) only where arbitration is vitiated by a grave fault that affects fundamentals of social and economic life. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=240&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDF
Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 30 July 1998 Parties N/A Case number 6 Sch 3/98 Applicable NYC Provisions II | II(1) | IV | II(2) | IV(1) | V | V(1) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4135&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) Date 12 March 1998 Case number 6 U 110/97 Applicable NYC Provisions V | V(2)(b) Source DIS
Summary The Parties entered into a construction contract according to which the Defendant agreed to pay 4% of the total sum of contract to the Claimant in exchange for its services. They subsequently amended their first agreement, lowering the percentage to 3% of total contract sum. Both agreements contained an arbitration clause providing for the resolution of disputes at the International Chamber of Commerce (ICC) in Zurich. The Defendant terminated the contract, alleging that the Claimant had not performed and that their agreement did not comply with Syrian law. The Defendant refused to pay any sums to the Claimant. The Claimant initiated ICC proceedings and obtained a favorable award, which was granted enforcement by the Landgericht (Regional Court) Hamburg. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) affirmed the lower court decision granting enforcement. It found that there was no invalid arbitration clause justifying non-enforcement under Article V(1)(a) NYC, because the alleged nullity of the contract did not affect the validity of the arbitration clause. The Defendant had failed to show sufficient grounds for violation of public policy justifying non-enforcement under Article V(2)(b). According to the Court, the recognition and enforcement of an arbitral award will only be refused where the award is tainted by a grave defect that affects the fundamental principles of state and economic life, or where it is unacceptably at odds with German principles of justice. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=238&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Landgericht Hamburg (Regional Court of Hamburg) Date 18 September 1997 Parties N/A Case number 305 O 453/96 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(2) | V(2)(b) | VII Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4072&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Author(s) Erik Schäfer Source 11(3,2) BB‐Beilage (1997) 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 : 75728939 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4205&opac_view=6
Country Germany Court Germany, Oberlandesgericht München (Higher Regional Court of Munich) Date 08 March 1995 Parties N/A Case number 08/03/1995 Applicable NYC Provisions VII Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4073&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 15 November 1994 Case number 29 U 70/ 92 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Oberlandesgericht Hamm Languages English Summary In 1985, the parties, a former Yugoslavian state-owned enterprise (the Applicant) and a German engineering agency (the Respondent), entered into a contract in which the Respondent agreed to represent the Applicant’s interests in Germany in return for the payment of commissions. The contract, which was governed by Swiss law, referred all disputes to the “the Court of Arbitration of the International Chamber of Commerce in Paris at the seat of Zurich”. Subsequently, the Applicant sued the Respondent for breach of contract before the Landgericht (Regional Court) Arnsberg. The Respondent objected based on the existence of an arbitration agreement between the parties, and also brought counterclaims in the state court proceedings. The Landgericht granted the Applicant’s claims and the Respondent’s counterclaims. The Landgericht considered that the arbitration agreement was invalid because it was ambiguous and also because it was not contained in a separate document in conformity with Section 1027 (1) of the German Civil Procedure Code. Both parties appealed the Landgericht’s decision to the Oberlandesgericht (Higher Regional Court) Hamm. The Respondent asserted that the dispute should be referred to arbitration and also raised several substantive arguments. The Oberlandesgericht dismissed the Applicant’s appeal except for certain side claims of the Applicant and granted the Respondent’s appeal. It held that the state courts were competent to decide the parties’ dispute notwithstanding the parties’ arbitration agreement. The Oberlandesgericht found that the arbitration clauses met all relevant form requirements, noting that Article II(2) NYC did not require an arbitration clause to be contained in a separate document. The Oberlandesgericht then stated that the arbitration agreement might be invalid on the basis that it was ambiguous since both the Zurich Chamber of Commerce and the International Chamber of Commerce in Paris had their own arbitration rules. Eventually, the Oberlandesgericht left the issue undecided, finding that the objection regarding the arbitration agreement was contrary to good faith and thus had to be disregarded. The Oberlandesgericht held that a party that was obviously incapable of bearing the costs of arbitration still sought to go to arbitration, it would be acting in bad faith. Here, the Oberlandesgericht concluded that the Respondent did not have the means to pay for the advances of costs of the arbitration given that it had asked for and obtained legal aid in the state court proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1333&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) Date 06 July 1994 Case number 20 U 162/93 Applicable NYC Provisions VII | VII(1) Source OLG Hamm Summary The Parties concluded a contract containing a clause referring all disputes to arbitration at the Foreign Trade Arbitration Court in Belgrade. The Claimant obtained a favorable award, which was granted enforcement in Germany at First Instance. The Defendant appealed. The Oberlandesgericht (Higher Regional Court) Hamm dismissed appeal, finding the request for enforcement to be well-founded. It considered that it was irrelevant that Yugoslavia (where award was rendered) no longer existed as a State. In this case, an arbitration clause was still in existence because it was part of a contract governed by private law, and the enforceability of the arbitral award could not depend on whether the State, in which one of the Parties has a seat, still existed in its earlier form. The Court considered that the Claimant had met the formal conditions for enforcement under German law, which applies in virtue of the more-favorable-right provision at Article VII(1) NYC. No grounds for non-enforcement had been proven under Article V(1) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=235&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 10 November 1993 Case number 27 W 57/93 Applicable NYC Provisions VI Source Original decision obtained from the Oberlandesgericht Frankfurt Languages English Summary A foreign party sought enforcement of an arbitral award rendered in India. The German party resisted enforcement arguing, inter alia, that the foreign party failed to provide security as required of foreign claimants under German procedural law. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main held that such security was not necessary because a party seeking enforcement of an arbitral award was not considered a claimant under Section 110(1) of the German Civil Procedure Code as it was not bringing a claim but only defending a right already obtained in arbitration. It held that under Article VI NYC, the court may only order the party resisting enforcement to provide adequate security, but not the party seeking enforcement see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=918&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 21 September 1993 Parties N/A Case number XI ZR 52/92 Applicable NYC Provisions II | II(2) Source Registry of the Court
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4074&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Author(s) Marc Lalonde Source International Arbitration a Changing World, ICCA Congress Series No. 6, Bahrain, A.J. van den Berg ed., Kluwer Law International 127 (1994) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Germany | United Kingdom | United States Worldcat Number Worldcat : 29843501 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3016&opac_view=6
Country Germany Court Germany, Oberlandesgericht Köln (Higher Regional of Köln) Date 16 December 1992 Case number 16 W 43/92 Applicable NYC Provisions II | VII | II(2) | VII(1) | II(1) Summary The Claimant sought the enforcement of an arbitral award obtained on the basis of the General Conditions of Sale contained in the Parties' contract, which expressly referred to the ECE 188 standard contract containing an ICC arbitration clause. The Claimant had sent a confirmation order to the Defendant, which contained the General Conditions but not the ECE contract. Enforcement was refused at First Instance on the grounds that there was no valid agreement in accordance with Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Cologne reversed the First Instance decision and granted enforcement, holding that an arbitration agreement may be tacitly concluded between merchants under German law, which applies on the basis of the more-favorable-right rule under Article VII(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=233&opac_view=6 Attachment (1)
Original PendingAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 03 December 1992 Case number III ZR 30/91 Applicable NYC Provisions II | II(2) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for delivery of sheep furs on the standard form “International Hide & Skin Contract No. 2” which contained an arbitration clause. The Buyer raised certain claims under the contract before the Landgericht (Regional Court) Frankfurt which were dismissed on the grounds that the parties had entered into an arbitration agreement. The Buyer then appealed to the Oberlandesgericht (Higher Regional Court) Frankfurt which reversed the Landgericht’s decision and remanded the case. The Oberlandesgericht held that the arbitration agreement between the parties was not valid since only one of the parties had given its explicit consent. The Seller appealed the decision. The Bundesgerichtshof (Federal Supreme Court) reversed the Oberlandesgericht’s decision on the ground that it had failed to take into account the Seller’s objection that, in the international trade of furs, the arbitration clause contained in the “International Hide & Skin Contract No. 2” was customarily and implicitly agreed between contracting parties on the basis of international trade usages (“Handelsbrauch”). According to the Bundesgerichtshof, an arbitration agreement can be concluded on grounds of international trade usages as long as the relevant contract is typical of the industry and the parties are regularly active in the relevant business field. It concluded that Article II NYC does not prevent the conclusion of an arbitration agreement based on international trade usages to the extent that the law at the seat of the arbitration does not require an arbitration agreement to be concluded in writing. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=919&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 February 1991 Case number XI ZR 349/89 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The Applicant obtained a favorable arbitral award in the Netherlands, granting its payment claims against three different parties (“Respondents”) in relation to commodity futures for slaughter pigs. The Applicant then sought enforcement of the award in Germany under Section 1044 of the German Civil Procedure Code. The Respondents opposed the action, alleging that German exchange law did not permit the enforcement of the obligations at issue and that the arbitral tribunal had not been impartial. The Landgericht (Regional Court) Osnabrück denied enforcement and the Applicant unsuccessfully appealed to the Oberlandesgericht (Higher Regional Court) Oldenburg. The Applicant appealed the decision to the Bundesgerichtshof (Federal Supreme Court), which admitted the appeal with respect to the third Respondent. The Bundesgerichtshof reversed the Oberlandesgericht’s judgment insofar as it had rejected the Applicant’s appeal, modified the Landgericht’s judgment, and declared the arbitral award enforceable with respect to the third Respondent. The Bundesgerichtshof found that enforcement was governed by Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code. It stated that under Article 17 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands on the Reciprocal Recognition and Enforcement of Court Decisions and Other Enforceable Titles in Civil and Commercial Matters, dated 30 August 1962, the NYC was applicable. The Bundesgerichtshof concluded that under Article VII(1) NYC, a party could request enforcement pursuant to the domestic law of the country where enforcement was sought. The Applicant had made use of this so that Section 1044 of the German Civil Procedure Code read in conjunction with Section 1042 of the German Civil Procedure Code was applicable. It concluded that there were no grounds for refusing enforcement under Section 1044 of the German Civil Procedure Code. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1334&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 26 April 1990 Case number III ZR 56/89 Applicable NYC Provisions V | V(2)(b) Source BGH Summary The Parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery but refused to take delivery of the rest of the merchandise once delivery became possible. The Seller claimed compensation. The award, affirmed in relevant parts by an appellate award rendered by the GAFTA Board of Appeal, denied the claim and granted the Buyer's counterclaim for damages for the Seller's non-performance. The Seller's action to set aside the award before the High Court in London failed. The Buyer's request for leave to enforce was granted by the Landgericht (Regional Court) Hamburg. This decision was confirmed by the Hanseatisches Oberlandesgericht (Higher Regional Court of Hamburg). The Bundesgerichtshof (Federal Supreme Court) affirmed the decision of the Oberlandesgericht, rejecting the Seller's objection of violation of due process under Article V(1)(b) NYC. It held that a party is barred from raising objections that it should have raised before the "juge d'appui" only where such objections relate to irregularities in the arbitral procedure which violate the law of the State where arbitration takes place, and the Seller's objection did not fail on that ground. Rather, the Court found that the Seller's objection failed because it had the right to be heard before the GAFTA Board of Appeal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=229&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 18 January 1990 Case number III ZR 269/88 Applicable NYC Provisions I | V | I(1) | V(1)(b) | V(2)(b) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The parties concluded a contract for the sale of barley. A dispute arose and the Buyer initiated arbitration proceedings with the Grain and Feed Trade Association (GAFTA), which issued two awards ordering the Seller to pay damages to the Buyer. The Seller sought to have the awards annulled by the High Court of Justice in London but was unsuccessful. The Buyer sought enforcement of the award before the Landgericht (Regional Court) Hamburg. The Seller objected to the enforcement, arguing that the arbitral proceedings had been conducted deficiently since a third person had been involved as consultant in the oral hearing and the writing of the award. In addition, the Seller alleged that false testimony and insufficient factual statements by the Buyer had drawn an incorrect picture of the economic situation and that the arbitral tribunal had violated the Seller’s right to be heard. The Landgericht granted the enforcement of the first award in its entirety and part of the second award. The Seller unsuccessfully appealed the decision of the Landgericht to the Oberlandesgericht (Higher Regional Court) Hamburg. The Seller then appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof confirmed the decision of the lower courts, stating that enforcement was subject to the NYC and Section 1044 of the German Civil Procedure Code, based on which it saw no impediments to granting enforcement. The Bundesgerichtshof stated that it did not need to decide whether the application should be assessed in accordance with Section 1044 of the German Civil Procedure Code or the NYC, since either would lead to enforcement being granted. The Bundesgerichtshof stated that both awards fulfilled the requirements of Section 1044(1) sentence 1 of the German Civil Procedure Code and Article I(1) NYC, since, as the Oberlandesgericht had stated, the arbitral awards had become binding upon the parties as they could no longer be challenged before an arbitral tribunal or state court. The Bundesgerichtshof held that recognition of the arbitral awards would not lead to a result that was in obvious contradiction with fundamental principles of German law (Section 1044(2) German Civil Procedure Code and Article V(2)(a) [sic] NYC). In this context, the Bundesgerichtshof found that the involvement of a legal consultant in the proceedings, by the tribunal, did not constitute a public policy violation since such a violation could not simply be assumed on the grounds of a deviation of a foreign arbitral procedure from mandatory domestic procedural law. It reasoned that a divergence was only relevant when it violated international public policy, which was a less restrictive standard for the recognition of foreign arbitral awards as compared to the regime for the recognition of domestic arbitral awards. According to the Bundesgerichtshof, the enforcement of a foreign arbitral award would only be refused if the arbitral proceedings had a severe defect that touched upon the fundamental basis of public and economic life, which was not the case here. With respect to the Seller’s contention that the arbitral tribunal had not appreciated that the Buyer did not have the necessary funds to secure the purchase price claim by way of a letter of credit, the Bundesgerichtshof held that this argument had already been raised before the arbitral tribunal and could therefore not be brought at the enforcement stage. It based this conclusion on the fact that the existence of grounds for revision under Section 580 of the German Civil Procedure Code, which would generally imply violations of international public policy, could no longer be raised in proceedings for recognition and enforcement of an arbitral award if the underlying facts had already been raised in the arbitral proceedings. The Bundesgerichtshof also rejected the alleged violation of the Seller’s right to be heard under Article 1044(2) No. 4 of the German Civil Procedure Code and Article V(1)(b) NYC. It held that, even if the tribunal had not addressed all of the Seller’s arguments, this did not violate the Seller’s right to be heard since an arbitral tribunal does not have to discuss its position vis-à-vis all of the parties’ arguments, rather, it is sufficient that the arbitral tribunal discusses the arguments that underlie its reasoning in the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1335&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Author(s) Hans-Jochem Luer Source 7(1) Journal of International Arbitration 127 (1990) 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 : 769440613 ISBN 978-90-411-2690-0 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3015&opac_view=6
Author(s) Christopher Kuner Source 7(4) Journal of International Arbitration 71 (1990) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions United States | Germany Worldcat Number Worldcat : 82702858 ISBN 978-0-379-00065-8 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3223&opac_view=6
Country Germany Court Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) Date 29 June 1989 Case number 6 U (Kart) 115/88 Applicable NYC Provisions VII | VII(1) Source Original decision obtained from the registry of the Oberlandesgericht Frankfurt Languages English Summary Following arbitration proceedings administered in Moscow by the Maritime Arbitration Commission at the USSR Chamber of Commerce and Industry in Moscow (MAC), a Soviet party obtained a favourable award in a shipping dispute against a German party. Enforcement was granted in Germany by the Landgericht (Regional Court) Kassel. The German party appealed the decision to the Oberlandesgericht (Higher Regional Court) Frankfurt, arguing, inter alia, that it had been coerced against its will to enter into the arbitration agreement with the Soviet party. The Oberlandesgericht dismissed the appeal and confirmed the Landesgericht’s decision that the award was enforceable in Germany. The Oberlandesgericht found that the Soviet party was allowed to seek enforcement not only under the German-Soviet Agreement on General Matters of Trade and Navigation of 1958, but also under more-favourable provisions under German domestic law. The Oberlandesgericht noted that the most-favourable right principle was explicitly set out in Article VII(1) NYC to which both Germany and the Soviet Union were parties. It further held that the principle is applicable not only in relation to treaties, but also in relation to domestic law since no party should be denied enforcement of an arbitral award based on a treaty when the relevant domestic law allows enforcement Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=927&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Hanseatisches Oberlandesgericht Date 26 January 1989 Case number 6 U 71/88 Applicable NYC Provisions V | V(2)(b) | V(1)(b) Source OLG Hamburg Languages English Summary The parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery of the goods, but refused to take delivery of the rest of the cargo. The Seller initiated arbitration proceedings. The arbitral tribunal denied the claim and granted the Buyer’s counterclaim. The award was confirmed by the GAFTA Board of Appeal. The Seller’s challenge before the High Court in London was dismissed while the Buyer’s request for leave to enforce before the Landgericht (Regional Court) Hamburg was granted. The Seller appealed. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) confirmed the decision of the Landgericht and dismissed the Buyer’s objections based on Articles V(2)(b) and V(1)(b) NYC. The Oberlandesgericht held that the award did not breach German public policy by obliging the Seller alone to bear the consequences of the U.S. embargo because the Seller had failed to demonstrate and prove that it was actually inhibited by the embargo from fulfilling its contractual obligations. It also held that by granting compound interest to the Buyer the award did not breach German public policy because the remedy was allowed by the law of the seat i.e. English law. It also dismissed the Seller’s allegation that the award was made in breach of its right to be heard because it had not been properly informed about the existence of the Buyer’s counterclaims during the arbitration. The Seller had various opportunities to bring these objections before the GAFTA Board of Appeal or before the London High Court but had failed to do so. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=920&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Author(s) Otto Sandrock ; Matthias Hentzen Source 2 Transnational Lawyer 49 (1989) 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 : 891192103 ISBN 978-90-411-2690-0 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3013&opac_view=6
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 14 April 1988 Case number III ZR 12/87 Applicable NYC Provisions V | I | V(2)(b) | V(1)(e) | V(1)(d) | V(1)(b) | I(1) Source Original decision obtained from the registry of the Bundesgerichtshof Languages English Summary The prevailing party in an International Chamber of Commerce (ICC) arbitration seated in Belgium sought enforcement of the award in Germany. The Landgericht (Regional Court) Stuttgart declared the award enforceable, but its decision was reversed by the Oberlandesgericht (Higher Regional Court) Stuttgart on appeal. The decision of the Oberlandesgericht was appealed before the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof reversed the Oberlandesgericht’s decision and reinstated the decision of the Landgericht, which had declared the award enforceable. It found that the NYC was applicable since the award had been rendered within the territory of another contracting state as per Article I(1) NYC. The Bundesgerichtshof held that the formal prerequisites set forth by Article IV NYC had been met and there were no grounds to refuse enforcement of the award under Article V NYC. First, it held that the award had become binding within the meaning of Article V(1)(e) NYC since it was not subject to appeal before a higher arbitral tribunal or a state court . Second, although the tribunal had exceeded the time limit for rendering its award under the ICC Rules, according to the Bundesgerichtshof, this would not constitute grounds for non-enforcement under Article V(1)(d) NYC. In this respect, it noted that under the ICC Rules an arbitral tribunal does not become functus officio unless it is substituted by a different tribunal, even if it fails to render its award within the prescribed time limit; thus, the extension of the time limit for rendering the award had nothing to do with the “composition of the arbitral authority.” Third, it ruled that not giving a party the opportunity to comment on the extension of the time limit for the issuance of the award did not constitute a ground for refusing enforcement under Article V(1)(b) NYC, recalling that this provision merely required that the parties be informed of the constitution of the arbitral tribunal and the existence of arbitral proceedings. The Bundesgerichtshof also dismissed the argument that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) NYC, since the unsuccessful party had failed to make use of the possibility to comment on the extension of the time limit, thus the ICC Court’s failure to explicitly ask for the parties’ comments regarding the extension of the time limit for rendering of the arbitral award did not constitute a violation of German public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=921&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
Country Germany Court Germany, Bundesgerichtshof (Federal Court of Justice) Date 15 June 1987 Parties Case number II ZR 124/86 Applicable NYC Provisions V | II | V(2)(b) | II(1) Source BGH Summary An investment contract between a German individual and a New York corporation, governed by New York law and containing an arbitration clause, contravened certain mandatory provisions of German exchange laws. In court proceedings in Germany, the New York corporation invoked the arbitration clause. The Bundesgerichtshof (Federal Supreme Court) held that the case was non-arbitrable under German law. The combination of arbitration proceedings abroad and applicable law other than German law would leave the German mandatory exchange laws without effect, with regard to both the protection against claims filed against the persons protected by these laws and the possibility for the protected persons to obtain reimbursement of any sum paid. In the Court's opinion, Article V(2)(b) NYC would have been applicable to the facts of the case since the contract contravened German mandatory rules that are part of German "ordre public". If the arbitration agreement were to be recognised and its validity only verified at the stage of the recognition proceedings, the German individual would be referred to arbitration before an American arbitral tribunal that would not apply the German mandatory rules, with the result that the German individual would be incapable of recovering the sums unduly paid to the New York corporation. For these reasons, the Court denied recognition of the arbitration agreement for the "subject matter" not being "capable of settlement by arbitration" pursuant to Article II(1) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=222&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDF
