Germany / 06 March 1969 / Bundesgerichtshof / VII ZR 163/68
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 06 March 1969 |
| Case number | VII ZR 163/68 |
| Applicable NYC Provisions | V | V(2)(b) | V(1)(a) |
| Source | Original decision obtained from the registry of the Bundesgerichtshof |
| Summary | A Seller initiated arbitration proceedings against a Buyer before the Czechoslovak Chamber of Commerce and obtained an award ordering the Buyer to pay for goods delivered. Subsequently, the Seller assigned its claims under the arbitral award to a third party, the Claimant in the present proceedings. The Claimant then sued the owners of the Buyer as joint and several debtors before the Landgericht (Regional Court) Hamburg for payment of the amount ordered by the arbitral award. The Respondents argued that the German court lacked jurisdiction since there existed a final and binding arbitration award on the matter and the parties had agreed to dispute resolution by way of arbitration. The Respondent further alleged that the award was not enforceable in Germany since the Seller had obtained the award using false evidence, which represented a ground for restitution under Section 580 of the German Civil Procedure Code and, as such, also a non-enforcement ground under Article V(2)(b) NYC. The Landgericht dismissed the Respondent’s objections. The decision was upheld on appeal before the Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court Hamburg). The Respondent appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof confirmed the earlier decisions of the Oberlandesgericht and Landgericht. Although the Bundesgerichtshof agreed with the Respondents that meeting the grounds for restitution under Sections 580(1) to 580(6) of the German Civil Procedure Code would generally also constitute a violation of German public policy under Article V(2)(b) NYC, this would be the case only if a party has been prevented without any fault of its own from raising such grounds during the arbitration proceedings. The Bundesgerichtshof concluded that since the alleged fraud on the part of the Seller could have been raised as a defence earlier, it could not now be raised by the Respondent. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
