Germany / 16 December 2010 / Germany, Bundesgerichtshof / III ZB 100/09
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 16 December 2010 |
| Case number | III ZB 100/09 |
| Applicable NYC Provisions | V | V(1)(a) |
| Languages | English |
| Summary | The Claimant sought recognition and enforcement of an award rendered in its favor in France by the Chambre Arbitrale Internationale pour les Fruits et Légumes (CAIFL). While the Defendant alleged the absence of an arbitration agreement during the proceedings, it did not avail itself of the appeal process in accordance with the Parties' contract, nor did it bring an action to set aside the award in the French courts. The Oberlandesgericht München (Higher Regional Court Munich) refused to declare the award enforceable on the grounds that there was no written arbitration agreement. The Claimant appealed that decision. The Bundesgerichtshof (Federal Supreme Court) confirmed the decision of the Oberlandesgericht. It held that the case law of the Bundesgerichtshof pertaining to the preclusion of pleas not raised before the tribunals or courts of the country in which the award was rendered no longer applied after the 1998 reform to German arbitration law. Therefore, even though the Defendant did not take recourse before the appellate body of the CAIFL or the French courts, it was not precluded from arguing that the tribunal lacked competence. The Court found that the Defendant was not in bad faith, and considered that contradictory behavior is abusive only when the other party has special confidence in that behavior or where circumstances make the behavior appear to be contrary to good faith. The mere fact that a party takes recourse in Germany without having sought to set aside the award abroad does not amount to contradictory behavior. |
| affirmed by : | |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
