Germany / 02 July 2009 / Bundesgerichtshof / IX ZR 152/06
|Germany, Bundesgerichtshof (Federal Court of Justice)
|02 July 2009
|IX ZR 152/06
|Applicable NYC Provisions
|An award was rendered in the Claimant's favour in 2002 and confirmed in 2003 by the Superior Court of California. The California Court adopted the factual findings and the legal considerations underlying the arbitral award, thus incorporating the award in its judgment. The Claimant's application for enforcement was granted by the Landgericht (Regional Court) Berlin in 2005. The Kammergericht (Higher Regional Court Berlin) affirmed the decision in June 2006, reasoning that the confirmation decision adopted the factual findings and legal conclusions of the award and made them their own. The Kammergericht Berlin upheld the doctrine of "double exequatur", whereby an applicant is granted the choice between having either the exequatur judgment or the award declared enforceable where an award is rendered in a jurisdiction following the doctrine of merger. It held that the decision was not a declaration of enforceability but rather an independent order and could be declared enforceable in its own right. The Bundesgerichtshof (Federal Supreme Court) reversed the decision of Kammergericht , abolishing the doctrine of "double exequatur" put forth in two decisions rendered in 1984 (see links below). The Bundesgerichtshof held that the double exequatur of judgments is not permissible under either German procedural law or unified European law of civil procedure since it could allow an applicant to circumvent objections to enforcement based on Article V NYC. According to the Bundesgerichtshof, should a country which is Party to the NYC apply the doctrine of merger, such application should be limited to the territory of that country.
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