Germany / 12 October 2009 / Oberlandesgericht München / 34 Sch 20/08
| Country | Germany |
| Court | Germany, Oberlandesgericht München (Higher Regional Court of Munich) |
| Date | 12 October 2009 |
| Case number | 34 Sch 20/08 |
| Applicable NYC Provisions | II | II(2) |
| Source | DIS |
| Summary | A dispute arose over an order under a sales contract, which referred to the Buyer's General Conditions of Contract (GCC), which provided for jurisdiction of a state court. The English version of the Seller's GCC provided for resolution of disputes by the Stockholm Chamber of Commerce, while the Swedish version provided for the jurisdiction of a Swedish arbitral tribunal. In 2007, the Seller commenced arbitration at the SCC seeking damages for breach of contract. The German Buyer objected to the jurisdiction of the SCC. The SCC rendered an award in favor of the Seller in June 2008, finding that the Parties had concluded during the course of two telephone conversations a valid contract, which included the arbitration clause in two telephone conversations. The seller sought enforcement in Germany. The Oberlandesgericht München (Higher Regional Court Munich) refused to enforce the award, finding that the Claimant had failed to prove the existence of an arbitration agreement, and that it was not bound by the findings of the arbitral tribunal in this regard. The Oberlandesgericht re-examined the evidence and concluded that no agreement had been concluded, either orally or through the sending of a confirmation order (which substantially differed from the original order). The Oberlandesgericht considered that the Defendant's objection was not precluded because it had failed to contest the award in Sweden. It reasoned that a party that does not submit to the jurisdiction of the tribunal cannot be expected to commence setting aside proceedings in the country where the award was rendered. |
Attachment (1)
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