Germany / 09 March 1978 / Germany, Bundesgerichtshof / III ZR 78/76
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 09 March 1978 |
| Case number | III ZR 78/76 |
| Applicable NYC Provisions | VII | VII(1) |
| Source | Original decision obtained from the registry of the Bundesgerichtshof |
| Languages | English |
| Summary | A Dutch seller of potatoes (the Seller) initiated arbitration proceedings against two German producers of French fries (the Buyers) based on an alleged sales agreement between the parties that provided for arbitration under the Rules and Usages of Intra-European Trade in Potatoes (RUCIP) in Hamburg. The arbitral tribunal dismissed the Seller’s claims based on the absence of a valid arbitration agreement. The Seller then appealed to an appellate arbitral tribunal as per the RUCIP, seated in Brussels, which modified the previous award and rendered an award in favor of the Seller. The arbitration award was declared enforceable by way of an order (“ordonnance”) by the President of the First Instance Court in Brussels. Upon application by the Seller, the Landgericht (Regional Court) Duisburg granted enforcement of the award. The Buyers lodged an objection to the declaration of enforceability on the grounds that no contract or arbitration clause existed between the parties. The Landgericht rejected the objection and confirmed its declaration of enforceability by way of a court judgment. The Buyers appealed – unsuccessfully – to the Oberlandesgericht (Higher Regional Court) Düsseldorf, and subsequently, on points of law only, to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof upheld the decision of the lower courts stating that enforcement was governed by the German-Belgian Treaty concerning the Reciprocal Recognition and Enforcement of Judicial Decisions, Arbitral Awards and Official Documents in Civil and Commercial Matters of June 30, 1958, (“the Treaty”), which was applicable to arbitral awards rendered within the territory of the contracting parties to the Treaty. As the appellate arbitral tribunal had been seated in Brussels, the Treaty was applicable to the award. However, the Bundesgerichtshof went on to say that, under Article 16 of the Treaty, the NYC, amongst others, might also be applicable, but found that it did not need to decide the interrelationship of such other treaties and the German-Belgium Treaty since the latter was more favorable for a party that sought enforcement in Germany of an arbitral award rendered and granted enforcement in Belgium. It held that Article VII NYC permitted the enforcing court to apply the more favorable rule in the bilateral treaty. The Bundesgerichtshof concluded that under the German-Belgium Treaty there existed no grounds to refuse enforcement of the arbitral award. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
