Germany / 17 April 2008 / Bundesgerichtshof / III ZB 97/06
|Germany, Bundesgerichtshof (Federal Court of Justice)
|17 April 2008
|III ZB 97/06
|Applicable NYC Provisions
|V | V(1)(e)
|A petroleum field licensing contract provided for International Chamber of Commerce arbitration in Copenhagen. The Claimant sought damages for breach of contract and obtained a favorable award. The Kammergericht (Higher Regional Court Berlin) granted enforcement of that award, and the Defendant brought an application for review by the Bundesgerichtshof (Federal Supreme Court). The Bundesgerichtshof set aside the decision of the Kammergericht on the basis that Defendant was precluded from raising grounds to refuse enforcement in Germany, since it had failed to request the setting aside of the award in its country of origin. The Bundesgerichtshof held that although the principle of good faith - and thus the notion of abuse of rights in the case of contradictory behavior ("venire contra factum proprium") - also applied in international arbitration, not every contradictory behavior was to be considered abusive. A party's behavior could only be judged an abuse of rights if the behavior of a party created legitimate expectations for the other party or additional contributory circumstances were in evidence. The Bundesgerichtshof held that the conscious decision not to file a request to set aside an arbitral award in the country of origin could not be understood to be a waiver of all other grounds for refusing enforcement in other countries pursuant to Article V NYC. Thus, the failure to request the setting aside of the arbitral award in the country of origin did not amount to abusive contradictory behavior in the sense of an abuse of rights.
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