Germany / 28 November 2005 / Germany, Oberlandesgericht München (Higher Regional Court of Munich) / 34 Sch 019/05
| Country | Germany |
| Court | Germany, Oberlandesgericht München (Higher Regional Court of Munich) |
| Date | 28 November 2005 |
| Case number | 34 Sch 019/05 |
| Applicable NYC Provisions | VII | V | IV | V(2)(b) | IV(2) | IV(1)(a) | VII(1) |
| Source |
Original decision obtained from the registry of the Oberlandesgericht München |
| Languages | English |
| Summary | The Respondent, a German paint company, engaged the Applicant, a UK construction company, to perform plastering works on certain buildings in the UK. A dispute arose as to the quality of the Applicant’s work and the Respondent refused to pay the Applicant for the work done. The parties went to arbitration and a sole arbitrator rendered an award granting part of the Applicant’s claims. The Applicant sought enforcement of the partial award in Germany. The Respondent objected to the enforcement contending, in particular, that the award should not be enforced since the sole arbitrator had not taken into account certain facts presented by the Respondent. The Oberlandesgericht (Higher Regional Court) München granted enforcement stating that the application for a declaration of enforceability met the formal requirements under German law (Sections 1025(4), 1061(1), 1064(1) and (3) of the German Civil Procedure Code. It noted that the Applicant had submitted the original award as well as a translation in German. It further stated that to the extent that Article IV NYC contained additional requirements regarding the submission of documents and their respective quality, pursuant to the more-favorable-right principle at Article VII(1) NYC, the less stringent requirements of German law were applicable instead of those in Article IV NYC . The Oberlandesgericht concluded that Section 1064(1) of the German Civil Procedure Code, in conjunction with Section 1064(3) of the German Civil Procedure Code were more favorable to the recognition of foreign arbitral awards and were applicable instead of Article IV NYC. The Oberlandesgericht also held that the grounds for refusing enforcement under Article V NYC were not applicable as the Respondent had not raised any of the grounds for refusing enforcement under Article V(1) NYC, and that enforcement could not be rejected based on the Respondent’s claim that the award violated public policy under Article V(2)(b) NYC. The Oberlandesgericht stated that an arbitral award violated public policy only if it violated a norm which affected the basis of German public and economic life or if it constituted an irreconcilable contradiction of German perceptions of justice. It held that public policy also included fundamental principles of procedural law, such as the right to be heard, and that whether there had been a breach of the right to be heard would be assessed on the basis of principles of German law. The Oberlandesgericht further held that it was key whether, from the standpoint of German public policy, the specific result of the application of a foreign law was to be rejected. The Oberlandesgericht concluded that in the present there was no violation of public policy as the Respondent had failed to prove that the arbitral tribunal had indeed ignored relevant facts. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
