Germany / 30 September 2010 / Germany, Bundesgerichtshof / III ZB 69/09
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 30 September 2010 |
| Case number | III ZB 69/09 |
| Applicable NYC Provisions | VII | V | II | V(1)(a) | II(2) | VII(1) |
| Source | BGH |
| Languages | English |
| Summary | A party sought enforcement of a foreign arbitral award in Germany. The issue that was dealt with throughout the proceedings before the courts was that a provision of German law foresees that the NY Convention alone applies to the recognition and enforcement of foreign arbitral awards (§ 1061 of the German Code of Civil Procedure). Thus, the question arose whether German law could accept the reference made back to German domestic arbitration law by Article VII(1) NYC for the requirement of an "agreement in writing" set out in Article II(2) NYC. The Oberlandesgericht (Higher Regional Court) Frankfurt/Main granted enforcement. Although there was no written arbitration agreement within the meaning of Article II (2) NYC, the Court found that in light of the more-favorable-right provision at Article VII(1) NYC, the requirement of an arbitration agreement signed by both parties could be dispensed with. The Court held that the party seeking enforcement could rely upon an arbitration agreement which complied with a less stringent provision of German law that would ordinarily only apply to domestic arbitration. Pursuant to the German law theory of "kaufmännisches Bestätigungsschreiben", a valid arbitration agreement can be concluded "in accordance with common usage" if a businessman remains silent after having been provided by another businessman with a 'sales confirmation' containing an arbitration clause. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision, holding that the more-favorable-right provision at Article VII(1) NYC permitted the application of a German provision less stringent than Article II NYC. It held that international law supports a broad interpretation of the more-favorable-right rule and an application of recognition-friendly national provisions to foreign arbitral awards. Also with regard to Article V(1)(a) NYC, the Court held that the more-favorable-right provision at Article VII(1) NYC also applies to the effect that there is no need to assess the validity under the law of the country in which the award was rendered when its validity is assessed under the law of the country in which enforcement is sought. |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
