Germany / 06 October 2003 / Oberlandesgericht Köln / 16 W 35/02
|Germany, Oberlandesgericht Köln (Higher Regional of Köln)
|06 October 2003
|16 W 35/02
|Applicable NYC Provisions
|A German Investor and a Russian State Agency established a joint stock company under Russian law. The Investor initiated an arbitration at the Stockholm Chamber of Commerce under the Germany-Russia Bilateral Investment Treaty and obtained favorable award. Russia commenced setting-aside proceedings against the award in Sweden. The Stockholm Court of First Instance denied the annulment request. Its decision was upheld by the Svea Court of Appeal. The Investor obtained enforcement in Germany from the Kammergericht (Higher Regional Court Berlin). It then sought an execution order from the Landgericht (Regional Court) Köln, which was vacated by the same Court following an objection by the Russia on the grounds that it had not waived its immunity in respect of those claims. The Investor appealed to the Oberlandesgericht Köln (Higher Regional Court Cologne). The Oberlandesgericht Köln dismissed the appeal, finding that the enforcement order was invalid. It reasoned that Article III NYC, which provides that substantially equal requirements shall apply to the enforcement of foreign and domestic awards, does not imply a waiver of sovereign immunity as it concerns execution on certain assets. The Court added that, as a consequence of the equal-treatment requirement under Article III NYC, general rules of international law that are part of the German legal system apply to the enforcement of foreign awards. According to these rules, claims concerning sovereign aims are immune from execution.
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