Germany / 04 January 2012 / Germany, Oberlandesgericht Karlsruhe / 9 Sch 02/ 09
| Country | Germany |
| Court | Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) |
| Date | 04 January 2012 |
| Case number | 9 Sch 02/ 09 |
| Applicable NYC Provisions | VII | V | VII(1) | V(2)(b) | V(1)(a) |
| Source | Original decision obtained from the registry of the Oberlandesgericht Karlsruhe. |
| Languages | English |
| Summary | The Claimant had obtained a favourable arbitration award following arbitration proceedings at the International Chamber of Commerce in San Diego, which granted it certain insolvency creditor claims against the Respondent. The Claimant sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Karlsruhe, which the Respondent opposed, alleging that the Claimant’s insolvency claims were not arbitrable and that the award violated public policy due to, inter alia, the arbitral tribunal’s alleged erroneous interpretation and application of the law, the conduct of oral hearings at a place different from the seat of the arbitration, the rendering of the arbitral award beyond the regular six-month time limit under Article 24(2) ICC Rules, the alleged sleeping of one of the arbitrators during the arbitration, and the allocation of the entire costs of the arbitration to the Respondent. The Oberlandesgericht dismissed all of the Respondent’s objections and granted enforcement, reasoning that the Respondent could have raised the arguments in the annulment proceedings under the United States Federal Arbitration Act, but had not done so within the applicable time limits, and was now precluded from raising them in the present enforcement proceedings. The Court found that, while Article V NYC did not contain such a preclusion rule, such a rule would be applicable based on German law since Article VII(1) NYC allowed the application of domestic court practice favorable to the recognition of foreign arbitral awards. The Oberlandesgericht also found that, in any event, the Respondent’s objections against enforcement were unfounded. It considered that disputes regarding rights of an insolvency creditor were capable of being resolved by arbitration and also that the award did not violate German public policy under Article V(2)(b) NYC by confirming insolvency claims which had previously been filed in the insolvency administrator’s list of claims, but had thereafter been listed as contested. The Oberlandesgericht noted that the Respondent had failed to recognize that public policy violations regarding international arbitration awards were to be assessed exclusively on the standard of international public policy and that, accordingly, a refusal of enforcement could be justified on public policy grounds only where the arbitral proceedings showed a grave defect that affected the basis of public and economic life in Germany. It concluded that this was not the case for any of the public policy violations raised by the Respondent. In addition, in relation to the alleged lack of attention of one of the arbitrators, the Oberlandesgericht made clear that the Respondent would have had to raise this issue in the arbitration. Finally, as regards the arbitral tribunal’s alleged misapplication of German law, the Oberlandesgericht stated that it could not consider this aspect due to the prohibition to review the award on the merits. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
