Germany / 13 January 1999 / Oberlandesgericht Dresden / 11 Sch 06/98
| Country | Germany |
| Court | Germany, Oberlandesgericht Dresden (Higher Regional Court of Dresden) |
| Date | 13 January 1999 |
| Case number | 11 Sch 06/98 |
| Applicable NYC Provisions | V | V(2)(b) |
| Source | DIS |
| Summary | In Spring 1992, the Claimant negotiated a sales contract with Company X. During negotiations preceding the sale, the general manager of Company X allegedly received a copy of the Claimant's general conditions of sale, which contained an arbitration clause providing for arbitration at the International Chamber of Commerce (ICC). By confirmation of order in May 1992, the sale was concluded between the Claimant and the first Defendant, who is a general partner in the second Defendant. The Claimant allegedly enclosed its conditions with its confirmation of order. The Claimant then sold other goods to the first Defendant and attached its general conditions to the confirmations for these sales. A dispute arose between the parties when the Defendants alleged that the product was defective and refused to pay part of the sales price. The Claimant obtained a favorable ICC award for damages amounting to unpaid sale price, and sought enforcement in Germany before the Oberlandesgericht (Higher Regional Court) Dresden. The Oberlandesgericht Dresden granted enforcement, finding that no grounds for refusal under Article V(2)(b) NYC existed. Although it considered that German law prohibits an agreement for lump sum damages in general conditions of sale, in this case lump sum damages were permitted under the law applicable to the dispute, and were not so high as to be at odds with German public policy. The Oberlandesgericht reached the same conclusion with respect to the arbitral tribunal's decision on attorney's fees. |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
