Germany / 21 September 2005 / Germany, Bundesgerichtshof / III ZB 18/05
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 21 September 2005 |
| Case number | III ZB 18/05 |
| Applicable NYC Provisions | VII | VII(1) |
| Source | BGH |
| Summary | The Claimant initiated arbitration in the Netherlands for the payment of works under a sales contract, and obtained an award in its favor. The Defendant had challenged the tribunal's jurisdiction on the grounds that the Parties had entered into an oral agreement and their alleged arbitration agreement was contained in general conditions copied on sales invoices. The Claimant sought recognition and enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Oldenburg denied recognition on the grounds that there was no arbitration agreement in writing pursuant to Articles V(1)(a) and II(2) NYC. The Claimant appealed to the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof held that in matters of recognition and enforcement of foreign arbitral awards, German courts are empowered by Article VII(1) NYC to apply national German law motu propio (without the parties invoking it) if the latter contains more favorable conditions for enforcement. This includes the German conflicts of laws rules, which point to Dutch law as the applicable law to the contract (lex contractus) chosen by the Parties. Pursuant to Dutch case law, a reference in an invoice to standard conditions of contract containing an arbitration clause may validly bind the parties that are in an ongoing business relationship is valid. The Bundesgerichtshof referred the case back to the Oberlandesgericht, which had not addressed this issue. |
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Attachment (1)
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