Germany / 22 November 2001 / Germany, Oberlandesgericht Rostock / 1 Sch 03/00
| Country | Germany |
| Court | Germany, Oberlandesgericht Rostock |
| Date | 22 November 2001 |
| Case number | 1 Sch 03/00 |
| Applicable NYC Provisions | VII | V | II | VII(1) | V(2)(b) | II(1) |
| Source | DIS |
| Summary | The Parties negotiated a sales contract in 1997. The Claimant allegedly sent a fax to the Defendant confirming the sales agreement and mentioning “arbitration to be subject to LME (London Metal Exchange) rules and regulations”. Then, the Claimant allegedly sent a fax confirming further sales and containing clause reading "arbitration by LME under English law normal force majeure terms to rule." The original letter was allegedly sent to the Defendant by mail. The Defendant refused to accept or pay for goods shipped by the Claimant. The Claimant commenced arbitration at the LME and obtained favorable award. The award was later declared enforceable by the High Court in London, which also denied the Defendant's motion to set aside. The Claimant sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Rostock denied enforcement, finding that the Claimant had failed to comply with the formal requirement under Article IV(1) NYC to provide the original arbitration agreement or certified copy thereof. In its reasoning, the Claimant could not rely on less stringent requirements of German law - according to which the enforcement of domestic award does not require supplying an arbitration agreement - because international treaties supersede German law on questions related to foreign awards pursuant to Section 1064(III) of the German Code of Civil Procedure. In any event, the more-favorable-right rule under Article VII(1) NYC does not concern formal requirements under the NYC. The Court further considered that there existed grounds for non-enforcement under Article V(1)(a) NYC, since there was no valid arbitration agreement between the Parties within the meaning of Article II NYC. Even if the more-favorable-right rule applied as a matter of principle, in the case at hand, the requirements under German law had not been met. The Court further considered that the enforcement of the award would violate German public policy pursuant to Article V(2)(b) because it would entail that the Defendant had not submitted to the judgment of the arbitral tribunal by its free will. Finally, the Court found that the Claimant was not estopped from raising grounds for non-enforcement because it did not challenge the award for lack of jurisdiction before the juge d'appui. In this case, the tribunal had assumed jurisdiction in an arbitrary manner and without any justification in the parties' agreement. |
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Attachment (1)
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