Germany / 07 December 2007 / Oberlandesgericht Dresden / 11 Sch 08/07
| Country | Germany |
| Court | Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) |
| Date | 07 December 2007 |
| Case number | 11 Sch 08/07 |
| Applicable NYC Provisions | V | V(1)(a) |
| Source | Original decision obtained from the registry of the Oberlandesgericht Dresden. |
| Languages | English |
| Summary | The Netherlands-based subsidiary of the US fast food chain “Subway” as Franchisor, and a German Franchisee entered into a contract for the operation of a Subway branch in Germany. The franchise contract was based on the Franchisor’s multi-purpose standard form contract which was governed by the law of Liechtenstein and provided for arbitration by sole arbitrator, under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), with oral hearings to be held in New York, administered by an arbitration institution, such as the International Centre for Dispute Resolution. A dispute arose and the Franchisor initiated arbitration proceedings before the American Dispute Resolution Center in Glastonbury, New York, and obtained a favourable arbitral award which it sought to enforce in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Kammergericht granted enforcement without hearing the Buyer’s counterclaims, finding that the arbitration clauses in all of the three contracts were valid. It considered that the arbitration clause contained in the contract signed by both parties was valid since it clearly met the formal requirements under Article II(2) NYC. The Kammergericht held that the validity of the arbitration clauses in the other two contracts resulted from the application by analogy of Section 1031(2) of the German Code of Civil Procedure, pursuant to which an arbitration agreement was valid if it was contained in a document transmitted by one party to the other party, provided that the content of the document could customarily be considered as contractually agreed upon, if the receiving party did not object to it in a timely manner (“kaufmaennisches Bestaetigungsschreiben”). The Kammergericht noted that under the more-favorable-right provision at Article VII NYC, the less stringent requirements under German law were applicable instead of those in the NYC. It concluded that since all three arbitration clauses were valid, the Buyer’s counterclaims were inadmissible based on the application by analogy of Section 1032(1) of the German Civil Procedure Code. |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
