Germany / 31 May 2007 / Germany, Oberlandesgericht Celle / 8 Sch 06/06
| Country | Germany |
| Court | Germany, Oberlandesgericht Celle |
| Date | 31 May 2007 |
| Case number | 8 Sch 06/06 |
| Applicable NYC Provisions | V | IV | II | V(2)(b) | V(1)(d) | V(1)(b) | V(1)(a) | IV(2) | IV(1)(a) |
| Source |
Original decision obtained from the registry of the Oberlandesgericht Celle. |
| Languages | English |
| Summary | The Parties – a German Licensee and a Finnish Licensor – concluded a License Agreement which provided for arbitration in Finland. The Licensee terminated the agreement and filed claims against the Licensor before the Landgericht (Regional Court) Hamburg. The Landgericht declined jurisdiction on the ground that the License Agreement contained an arbitration clause. The Licensee subsequently initiated arbitration proceedings in Finland. The arbitral tribunal dismissed the Licensee’s claims and granted the Licensor’s counterclaims. The Licensor sought enforcement of the award before the Oberlandesgericht (Higher Regional Court) Celle. The Licensee objected to the enforcement arguing, inter alia, that the parties’ business relationship was merely based on an implicit oral agreement and that the License Agreement, including the arbitration clause, existed only in draft form so that the Licensor was incapable of providing the original arbitration agreement as required under Article IV(1)(b) NYC. In addition, the Licensee alleged that the sole arbitrator had been biased because he was a member of an association to which a shareholder of the Licensor belonged. According to the Licensee, the arbitrator’s bias were evidenced by the fact that the award one-sidedly favoured the Licensee and disregarded the Licensee’s substantive arguments and its applications for the submission of evidence. The Licensee also alleged various irregularities regarding the arbitration proceedings. The Oberlandesgericht rejected the Licensee’s claims and declared most of the award to be enforceable. It first stated that the formal requirements for recognition of arbitral awards set out in Articles IV(1)(a) and IV(2) NYC had been met. It concluded that as the Licensor had submitted the original award and its translation, under German law, which was applicable by virtue of the more-favorable-right provision at Article VII NYC, it was not necessary for an applicant to submit the arbitration agreement (Section 1064(1) of the German Civil Procedure Code). The Oberlandesgericht also found that the substantive requirements for granting enforcement had been met, since none of the grounds for denying enforcement under Article V NYC were applicable. With reference to Article V(1)(a) NYC, the Oberlandesgericht noted that it did not need to decide whether the arbitration clause contained in the “License Agreement” was valid or not since the Landgericht’s earlier decision confirming the validity of the arbitration agreement had a res judicata effect. Moreover, given that the Licensee had initiated arbitration proceedings on the basis of the same arbitration agreement, it was now precluded from asserting that the arbitration agreement was invalid. Furthermore, the Oberlandesgericht rejected the Licensee’s argument that its right to be heard had been violated by the arbitrator, finding that the parties had been given a full opportunity to present their case, and that the right to be heard, as provided in Article V(1)(b) NYC, did not protect a party against an arbitral tribunal’s decision to disregard evidence applications by the parties based on formal or substantive reasons. The Oberlandesgericht also rejected the Licensee’s arguments regarding procedural irregularities under Article V(1)(d) NYC. Moreover, the Oberlandesgericht also rejected the Licensee’s arguments regarding a violation of German public policy under Article V(2)(b) NYC holding, first, that there was no evidence that the sole arbitrator’s membership in the association to which the Licensor happened to belong had affected the sole arbitrator’s impartiality and, second, that the findings in the award also did not violate German public policy. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
