Germany / 20 January 2011 / Germany, Kammergericht / 20 Sch 09/09
| Country | Germany |
| Court | Germany, Kammergericht |
| Date | 20 January 2011 |
| Case number | 20 Sch 09/09 |
| Applicable NYC Provisions | II | VII | II(2) | VII(1) |
| Source | Original decision obtained from the registry of the Kammergericht. |
| Languages | English |
| Summary | A Czech Seller of sugar sought enforcement in Germany before the Kammergericht (Higher Regional Court Berlin) of an arbitration award rendered against a German Buyer, following an arbitration in London under the arbitration rules of the Refined Sugar Association (RSA). The Buyer opposed enforcement and raised certain counterclaims in the enforcement proceedings. The Seller argued that the counterclaims were inadmissible in the proceedings because the three contracts which formed the basis for the Buyer’s counterclaims all contained arbitration clauses. The Buyer, in contrast, argued that the arbitration clauses in two of the contracts were invalid since they had only been signed by the Buyer but not by the Seller. 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, 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
