Germany / 11 July 2011 / Oberlandesgericht München / 34 Sch 15/10
| Country | Germany |
| Court | Germany, Oberlandesgericht München (Higher Regional Court of Munich) |
| Date | 11 July 2011 |
| Case number | 34 Sch 15/10 |
| Applicable NYC Provisions | V | V(1)(a) |
| Languages | English |
| Summary | A Ukranian and a German company entered into a sales agreement containing an arbitration clause providing for arbitration before the International Court of Arbitration of the Zurich Chamber of Commerce. Shortly therafter, the parties entered into a supplementary agreement providing for arbitration before the Ukranian Chamber of Industry and Commerce in Kiev. The Ukranian party obtained an award against the German party before that tribunal in Kiev and sought enforcement thereof before the Oberlandesgericht (Higher Regional Court) München. The German Defendant argued that the second arbitration agreement was invalid as it constituted a mere collusion ("Scheingeschäft"). The German Defendant argued that it only agreed to this provision as the Ukranian party had pretended that it was a pro forma requirement of the Ukranian customs authority in order to be able to continue to export the goods. The Claimant, for its part, countered that the supplementary agreement had been entered into for cost reasons. The Oberlandesgericht granted the enforcement. It held that the Defendant was certainly already barred from invoking the invalidity of the agreement as it had not done so before the arbitral tribunal. Moreover, the Court did not find the agreement to constitute a collusion under Ukranian law applicable to that question. In particular, it held that if it is true that the party seeking enforcement always bears the burden of proof with respect to the existence of a valid arbitration agreement, the opposing party alleging that an agreement is a collusion yet bears the burden of proof for that allegation. The Court held that the Respondent has not satisfied that burden of proof. |
Attachment (1)
 Original Pending Adobe Acrobat PDF |
