Germany / 17 April 2008 / Kammergericht / 20 Sch 02/08
| Country | Germany |
| Court | Germany, Kammergericht |
| Date | 17 April 2008 |
| Case number | 20 Sch 02/08 |
| Applicable NYC Provisions | V | V(2)(b) | V(1)(b) |
| Source | DIS |
| Summary | The Parties concluded a supply contact in 2004 containing an clause referring disputes to arbitration at the International Commercial Arbitration Court (ICAC) in the Ukraine. The Claimant commenced arbitral proceedings. The ICAC Secretariat subsequently sent the Statement of Claim, the ICAC Rules and a list of possible arbitrators to the Defendant by registered letter, which was not collected and returned to sender. A subsequent registered letter containing an invitation for the Defendant to attend the hearing was also returned to sender. The tribunal rendered an award in the Claimant's favor and sent it to the Defendant by registered letter, which was not collected. The Claimant's lawyer then sent the award to the Defendant, and sought enforcement in Germany. The Kammergericht (Higher Regional Court Berlin) granted enforcement, finding that the Defendant was precluded from relying on grounds for non-enforcement since it had not raised them in annulment proceedings in the Ukraine within the three-month time limit set by Ukrainian law. The preclusion (Präklusion) provision in respect of domestic awards in Germany applied to the enforcement of foreign awards, even if there is no equivalent provision in the NYC. The Court considered that there had been no violation of due process justifying non-recognition under Article V(1)(b) NYC, as "assumptions of communication" [Zustellungsfiktionen] suffice for proper summons. The Court further found that there had been no violation of procedural due process within the meaning of Article V(2)(b) NYC, because under Ukrainian arbitration law, a registered letter is deemed to have been duly delivered to the defendant in an arbitration. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
