Germany / 14 November 2011 / Oberlandesgericht München / 34 Sch 10/11
|Germany, Oberlandesgericht München (Higher Regional Court of Munich)
|14 November 2011
|34 Sch 10/11
|Applicable NYC Provisions
|V | V(2)(b) | V(1)(d) | V(1)(b)
|Two German companies entered into a settlement agreement regarding a corporate acquisition operation. The settlement agreement provided for arbitration in Zurich under the DIS (German Institution of Arbitration) Rules. The Claimants initiated proceedings claiming for damages for breach of the settlement agreement. The Defendant argued that the damages were contractually limited to the value of a property which was lower than the amount claimed for. The arbitral tribunal granted the full amount of damages finding that the value was assessed by the Claimants' expert and had served as a basis to the Parties' settlement negotiations. Also considering other factual elements, the arbitral tribunal held that the Defendant's expert report which came to a lower value was not convincing in this regard. The Claimants sought enforcement in Germany. The Defendant opposed the application of enforcement arguing a violation of its right to be heard by the arbitral tribunal. The Defendant asserted that the arbitral tribunal which lacked proper expert knowledge, had violated its right to be heard by following the Claimants' expert valuation without itself assessing the question by application of a proper valuation method, without appointing an expert and without adressing the Defendant's expert report. The Claimants submitted, on the contrary, that the arbitral tribunal was not obliged to appoint an expert as the German Civil Procedure Code which would have required such an appointment does not apply but the DIS Rules the parties had agreed on. The Claimants further asserted that the tribunal's assessment of the evidence was correct and would not amount to a violation of German "ordre public", in any event. The Oberlandesgericht (Higher Regional Court) München declared the award enforceable. It held that the right to be heard as a basic principle laid down in the German Constitution (Article 103(1) Grundgesetz) also applies to arbitration. Therefore, the arbitral tribunal needs to consider the Parties' position and their applications on the admission of evidence concerning facts relevant to the case. With regard to the alleged violation of Articles V(1)(b), V(2)(b) and V(1)(d) NYC, the Oberlandesgericht found that in the case at hand, the arbitral tribunal did consider the question of the property's value, and discussed in detail which expert's view should prevail. The Oberlandesgericht further found that the arbitral tribunal had the right to proceed the way it did in the framework of the DIS Rules. Thus, the tribunal did not violate the Defendant's right to be heard.
Adobe Acrobat PDF