Germany / 26 June 2006 / Germany, Oberlandesgericht Frankfurt / 26 Sch 28 / 05
| Country | Germany |
| Court | Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) |
| Date | 26 June 2006 |
| Case number | 26 Sch 28 / 05 |
| Applicable NYC Provisions | II | VII | II(1) | II(2) | VII(1) |
| Source | Original decision obtained from the registry of the Oberlandesgericht Frankfurt |
| Languages | English |
| Summary | The Applicant sought enforcement of an arbitral award rendered in the Netherlands ordering the Respondent to make payment for goods delivered by the Applicant. Following a phone conversation between the parties, the content of which was disputed, the Respondent had sent two purchase orders to the Applicant by fax, which included a reference to the exclusive application of the Respodnent’s general purchasing terms and conditions . The Applicant confirmed receipt of the purchase orders by fax, adding that the purchase orders were subject to the Rules for the Graphic Industry in the Netherlands, which contained an arbitration clause. The Respondent did not respond to the confirmation. Subsequently, the Respondent failed to pay the purchase price and the Applicant initiated arbitration proceedings. During the proceedings, the Respondent did not present arguments on the merits. The tribunal issued an award granting Applicant’s claims and the Applicant sought recognition and enforcement of the award in Germany. The Respondent opposed the enforcement arguing that it had not agreed to the Applicant’s terms and conditions and there was thus no arbitration agreement between the parties. The Oberlandesgericht (Higher Regional Court) Frankfurt rejected the application for recognition, finding that there was no arbitration agreement in writing between the parties as per Article II(2) NYC and that based on Article III and Article V(1)(a) NYC, the award could not be recognized. The Oberlandesgericht stated that although the absence of an arbitration agreement had to be raised during the arbitration proceedings, omitting to do so did not preclude a respondent from raising a defense based on the absence of an agreement in writing, as per Article II NYC, at the enforcement stage. The Oberlandesgericht stated that under Article II(2) NYC, an “agreement in writing” as mentioned in Article II(1) NYC meant an arbitration clause in a contract or a separate arbitration agreement which was signed by the parties or was contained in an exchange of letters or telegrams between the parties. It stated that the burden of proving the existence of such a written agreement rested on the party seeking enforcement. The Oberlandesgericht concluded that based on the Applicant’s allegations alone it was clear that the parties had not concluded an “agreement in writing,” as required under Article II(2) NYC. The Oberlandesgericht clarified that Article II(2) NYC required an exchange of documents between the parties and that a unilateral transmission of a contract was insufficient, in the same way that a unilateral written confirmation of an oral agreement would be insufficient. The Oberlandesgericht added that an oral agreement or tacit acceptance of a contractual offer did not satisfy the requirement of an agreement in writing under Article II(2) NYC. Finally, the Oberlandesgericht held that the requirement that the arbitration agreement be in writing, as per Article II NYC, could not be disregarded based on the more-favorable-right provision of Article VII(1) NYC. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
