Germany / 23 September 2004 / Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) / 4 Z Sch 05/04
| Country | Germany |
| Court | Germany, Bayerisches Oberstes Landesgericht (Bavarian Highest Regional Court) |
| Date | 23 September 2004 |
| Case number | 4 Z Sch 05/04 |
| Applicable NYC Provisions | VII | V | VII(1) | V(1)(d) |
| Source |
DIS |
| Summary | The Parties entered in a service agreement, which the Defendant terminated. The Claimant initiated Court proceedings in Syria. The Syrian court decided in the Claimant's favor. The Defendant's Syrian counsel subsequently agreed to arbitrate the claim in Syria, and that the proceedings would take the Syrian Court decision into account. An award was rendered in the Claimant's favor, who then sought enforcement in Germany. The Bayerisches Oberstes Landesgericht (Bavarian Supreme Court) granted enforcement. It reasoned that in this case, an objection based on the lack of a written arbitration agreement does not constitute a ground for denying recognition because the objecting party participated in the arbitration without raising any objection to jurisdiction, and also signed a written power of attorney which expressly appointed counsel to represent it in arbitral proceedings. The Court reasoned that German law applies by virtue of the more-favorable-right provision under Article VII(1) NYC, and does not require the party seeking enforcement to also supply the arbitration agreement. In the Court's view, only an essential procedural defect constitutes grounds for refusal of enforcement under Article V(1)(d) NYC, and "essential" in this context means that it caused the tribunal to reach a different decision. Finally, the Court found that the fact that the the Syrian tribunal did not apply German law could not amount to a violation of public policy under Article V(2)(b) NYC. |
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Attachment (1)
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