Germany / 30 March 2000 / Oberlandesgericht Schleswig / 16 SchH 05/99
| Country | Germany |
| Court | Germany, Oberlandesgericht Schleswig |
| Date | 30 March 2000 |
| Case number | 16 SchH 05/99 |
| Applicable NYC Provisions | V | IV | II | V(2)(b) | V(1)(d) | V(1)(a) | IV(1)(b) | II(2) |
| Source | DIS |
| Languages | English |
| Summary | The Defendant purchased goods from the Claimant since 1995. In 1997, the Defendant placed an order and the Claimant confirmed the sale by telefax using its standard form which contained a reference to the General Conditions of Sale printed on the reverse side which on its face contained an arbitration clause providing for arbitration at the Court of Arbitration of the Hungarian Chamber of Commerce. The Claimant only sent the front side of the contract form which the Defendant signed and faxed back to the Claimant. The dispute arose and the Claimant commenced arbitration proceedings. The Court rendered a preliminary award in the Claimant’s favor and thereafter a final award which the Claimant sought to enforce before German Courts. The Oberlandesgericht (Higher Regional Court) Schleswig enforced the award, holding that both the requirements of Article IV NYC and Sections 1061 and 1064 of the ZPO (Zivilprozessordnung) had been met. The Court deemed that the contract form signed by the Defendant and faxed to the Claimant fulfilled the formal requirements of Article II(2) NYC. The Court dismissed the Defendant’s objection based on Article V(1)(a) NYC, by stating that Article V(1)(a) presupposes a formally valid arbitration agreement which the Claimant has the burden to prove. The Court stated that the substantive rule in Article II(2) prevails over any national law “be it more or less strict as to the formal requirements”. Moreover, the Court stressed that the Defendant cannot argue that it was not aware of the arbitration clause printed on the reverse side as the Parties were in ongoing business relationship pursuant to which the Claimant would always use the same form for the conclusion of its contracts with the Defendant. Accordingly, the Court stressed that even if there were no formally valid arbitration agreement, this defect would have been cured since the Defendant failed to object the tribunal’s jurisdiction during the arbitration and thus waived its right to object at a later stage of the proceedings. The Court specified that the prohibition of contradictory behavior is a legal principle that needs to be taken into account within Article II(2). The Court found that the fact that the Defendant did not initiate annulment proceedings before Hungarian Courts did not preclude it from resisting enforcement under Article V(1)(a) . The Court further found that it was not bound by the arbitral tribunal’s finding on jurisdiction and found that under the applicable Hungarian provision, the formal defect was cured when the Defendant entered into the merits of the arbitration claim without objecting the substantive validity of the arbitration agreement. Finally, the Court dismissed alleged violation under Article V(1)(d) NYC, based on the fact that the procedural language of the arbitration was Hungarian, since the Defendant had a Hungarian counsel, and found the award was not contrary to German public order pursuant to Article V(2)(b). |
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Attachment (1)
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