Germany / 04 September 2003 / Germany, Oberlandesgericht Celle / 8 Sch 11/02
| Country | Germany |
| Court | Germany, Oberlandesgericht Celle |
| Date | 04 September 2003 |
| Case number | 8 Sch 11/02 |
| Applicable NYC Provisions | V | II | II(1) |
| Source | DIS |
| Summary | The Claimant sought enforcement in Germany of an award rendered pursuant to a clause providing for arbitration at the China International Economic and Trade Arbitration Commission (CIETAC). The contract had been signed signed by the Defendant's agent for the Asian market with the title "executive director". The Oberlandesgericht (Higher Regional Court) Celle denied enforcement, finding that it was not bound by the legal and factual findings of a foreign arbitral tribunal regarding its competence, especially with regard to the question of the validity of an arbitration agreement. While in principle, the party opposing enforcement has the burden to prove grounds for refusal under Article V NYC, the party seeking enforcement has the burden to prove the "pre-condition for the existence of the grounds for such refusal", i.e. that the parties have concluded an agreement pursuant to Article II NYC. The Court found that the Claimant had not supplied an "agreement in writing" within the meaning of Article II(1) NYC, as the printout of a fax supplied the Claimant containing the contract was largely illegible, and the "readable copy" of the contract had not been signed. The Claimant had not met its burden of proving that it had validly concluded a contract with the Defendant. The Court reasoned that Chinese law, which does not differ substantially from German law, should be applied to determine whether the agent had a power of attorney, and that under the applicable law the Claimant had no reason to believe that the "agent" had such authority. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
