Germany / 28 November 2008 / Oberlandesgericht Hamm / 25 Sch 09/08
| Country | Germany |
| Court | Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) |
| Date | 28 November 2008 |
| Case number | 25 Sch 09/08 |
| Applicable NYC Provisions | V | V(2)(b) | V(1)(e) | V(1)(c) | V(1)(b) |
| Summary | In 2000, the Parties concluded a contract setting out the framework for their future business relationship, which provided for the application of Swiss law and the conclusion of separate supply contracts. The contract was amended in 2004, and in 2006 a clause was added providing for arbitration of disputes in Zurich at the Swiss Chambers of Commerce. The Parties concluded separate supply contracts on different dates containing separate payment provisions, but which all provided for the application of Russian law and for arbitration in Moscow under the Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC). A dispute arose in respect of the framework contract and was referred to arbitration in Zurich. An award was rendered in favor of the Claimant and later affirmed by the Swiss Federal Supreme Court. Disputes also arose in respect of four supply agreements, and arbitration was initiated in Moscow. On 17 December 2007, an arbitral tribunal issued four awards in favor of the Claimant, who sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Hamm granted enforcement of the Russian awards by four identical decisions. It found that the Defendant was likely precluded from raising grounds for refusal under Article V(1)(e) NYC because it had failed to commence an action for annulment in Russia. This issue remained open, however, because the Defendant had failed to prove any such grounds. For this reason, no decision on preclusion under Article V(1) NYC was necessary. The Court further found that there were no grounds for non-recognition under Article V(1) NYC. The awards were final and binding in light of the application of the ICAC Rules and the fact that time limit for seeking annulment had expired. The Russian arbitral tribunal had proper jurisdiction, as the supply contracts and framework contract were separate and distinct, and therefore there were no grounds for non-refusal under Article V(1)(c). There was no violation of due process that could justify non-recognition under Article V(1)(b), as the ICAC rules provide for proceedings in Russian. The Oberlandesgericht further found that there were no grounds for non-recognition under Article V(2)(b) NYC. The arbitral tribunal could decide on jurisdiction together with merits under the ICAC rules and under German law, and the Defendant did not prove the alleged bias of one of the arbitrators. It further considered that the arbitral tribunal was permitted to deny the Defendant's request for set-off under the ICAC Rules. |
| see also : |
Attachment (1)
 Original Pending Adobe Acrobat PDF |
