Germany / 14 September 2007 / Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) / 9 Sch 02/07
| Country | Germany |
| Court | Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) |
| Date | 14 September 2007 |
| Case number | 9 Sch 02/07 |
| Applicable NYC Provisions | VII | V | IV | III | V(1)(d) | V(1)(c) | V(2)(b) | VII(1) |
| Source |
Original decision obtained from the registry of the Oberlandesgericht Karlsruhe |
| Languages | English |
| Summary | The Applicant sought enforcement of an award rendered in Taiwan before the Oberlandesgericht (Higher Regional Court) Karlsruhe. The Respondent opposed enforcement arguing that the award creditor had failed to submit a certified copy and a translation of the award, and that the dispute was not covered by the arbitration agreement. It further contended that the tribunal had not been properly constituted because the nomination of a substitute arbitrator should have been made by the Taiwanese courts rather than the Arbitration Association of the Republic of China in Taiwan. In addition, the Respondent argued that the appointment of three Taiwanese arbitrators violated public policy. The Oberlandesgericht declared the award enforceable finding that it was sufficient that the Applicant had submitted a certified copy of the arbitration award. It stated that an original or a certified copy of the arbitration agreement [sic] and a translation were not required under German law, which was applicable instead of Article IV NYC, pursuant to the more-favorable-right provision at Article VII(1) NYC. The Oberlandesgericht concluded that the application for declaration of enforceability had merit (Article III), since the Respondent was in any event precluded from raising its non-enforcement grounds at this stage since it had an opportunity to raise arguments during the annulment proceedings in Taiwan, but had failed to do so. In this respect, the Oberlandesgericht also noted that it was long accepted in German case law that objections to enforcement could be considered in enforcement proceedings only if a permissible and relevant annulment application was not yet time-barred at the seat of the arbitration. Additionally, the Oberlandesgericht found that although Article V NYC did not contain a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement pursuant to Article VII NYC. Moreover, it found that since Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to domestic annulment proceedings, foreign preclusion rules should equally be given effect to ensure legal certainty. The Oberlandesgericht held that, in any case, the objections to the enforcement application were without merit. It found the arbitral tribunal’s broad interpretation of the arbitration clause convincing, and held that the dispute was covered by the arbitration clause (Article V(1)(c) NYC). In addition, the Oberlandesgericht held that any errors in the constitution of the arbitral tribunal could not justify a refusal of enforcement under Article V(1)(d) NYC, reasoning that even if one assumed that the substitute appointment should have been made by the Taiwanese courts, the Respondent would have to substantiate the extent to which the appointment by the state courts would have led to a different procedural outcome and, in particular, to the appointment of an arbitrator of a different nationality. Finally, the Oberlandesgericht found that the mere fact that the nationality of all three arbitrators was the same as one of the parties did not per se, and without any further concrete evidence, constitute a violation of the principle of neutrality such as to justify a refusal of enforcement based on Article V(2)(b) NYC. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
