Germany / 08 June 2010 / Bundesgerichtshof / XI ZR 349/08
|Germany, Bundesgerichtshof (Federal Court of Justice)
|08 June 2010
|XI ZR 349/08
|Applicable NYC Provisions
|II | II(2)
|In this complex case, the German Claimants entered into service agreements with a New Jersey broker via the latter's German agent. A multitude of forms were sent by that broker to the German claimants, some of which contained (contradictory) arbitration agreements, and none of which yet had been signed by both Parties. The dispute went through all instances in Germany. The Bundesgerichtshof (Federal Supreme Court) held, inter alia, that arbitration clauses regarding disputes related to broker activities are not binding under German law, unless both parties are businessmen. It further held that pursuant to the German rules of private international law, arbitration clauses contained in contracts concluded between German consumers and foreign brokers are to be assessed under German law and therefore must meet the formal requirements of § 1031(5) of the German Code of Civil Procedure (requirement of, inter alia, a document manually signed by the consumer). The Bundesgerichtshof considered that a certain number of factual assessments still needed to be carried out before a final finding was possible in this case and sent the case back to the Oberlandesgericht (Higher Regional Court) Düsseldorf for reassessment. The Bundesgerichtshof added that it confirmed the view previously expressed by the Oberlandesgericht that under German law, a foreign broker - together with a German broker - will be held to have deliberately inflicted intentional damage on German consumers/investors, thereby offending good morality, when the foreign broker consciously and blatantly grants the German broker full and uncontrolled access to foreign stock exchanges without previously controlling the latter's business plan.
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