Case Law
Germany / 27 August 2009 / Oberlandesgericht Frankfurt / 26 SchH 03/09
| Country | Germany |
| Court | Germany, Oberlandesgericht Frankfurt am Main (Higher Regional Court of Frankfurt am Main) |
| Date | 27 August 2009 |
| Case number | 26 SchH 03/09 |
| Applicable NYC Provisions | II | V | V(2)(b) | V(1)(d) | V(1)(b) | II(2) |
| Source | DIS |
| Summary | The Parties entered into a sales contract in October 2006. In 2007, the employees of both Parties discussed further deliveries under the contract. The Claimant sent a purchase confirmation (providing for resolution of disputes by arbitration) and a signed contract to the Defendant, which explained in more detail the arbitration clause and stated that it would be deemed valid if not returned within 15 days. The Defendant did not sign the contract and informed the Claimant that it would not make further deliveries. The Claimant initiated arbitration at International Cotton Association (ICA) and obtained a favorable award in 2008. The Defendant appealed unsuccessfully at ICA. The Claimant then sought enforcement in Germany. The Oberlandesgericht (Higher Regional Court) Frankfurt granted enforcement. It reasoned that the arbitration agreement, thought not “in writing” for the purposes of the NYC, was valid under the formal requirements of German law, which applies pursuant to the more-favorable-right provision at Article VII(1) NYC. It considered that there was no procedural defect justifying non-recognition under Article V(1)(d), as the Defendant was permitted to nominate its arbitrator from an ICA list. Nor was there a violation of due process that could constitute grounds for non-enforcement under either Article V(1)(b) or V(2)(b) NYC. According to the Court, due process is guaranteed when each party can express its opinion concerning the factual and legal aspects of its case, and the tribunal discusses and determines all of the parties' relevant arguments. On the other hand, due process is not violated when a tribunal does not examine all details of the Parties' arguments in the reasons for its decision, or refuses to grant a request for an oral hearing. |
Attachment (1)
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