Germany / 26 January 1989 / Hanseatisches Oberlandesgericht / 6 U 71/88
| Country | Germany |
| Court | Germany, Hanseatisches Oberlandesgericht |
| Date | 26 January 1989 |
| Case number | 6 U 71/88 |
| Applicable NYC Provisions | V | V(2)(b) | V(1)(b) |
| Source | OLG Hamburg |
| Languages | English |
| Summary | The parties concluded a contract for the delivery of soybean flour providing for Grain and Feed Trade Association (GAFTA) arbitration in London. The United States placed an embargo on the merchandise. The Buyer accepted partial delivery of the goods, but refused to take delivery of the rest of the cargo. The Seller initiated arbitration proceedings. The arbitral tribunal denied the claim and granted the Buyer’s counterclaim. The award was confirmed by the GAFTA Board of Appeal. The Seller’s challenge before the High Court in London was dismissed while the Buyer’s request for leave to enforce before the Landgericht (Regional Court) Hamburg was granted. The Seller appealed. The Hanseatisches Oberlandesgericht (Higher Regional Court Hamburg) confirmed the decision of the Landgericht and dismissed the Buyer’s objections based on Articles V(2)(b) and V(1)(b) NYC. The Oberlandesgericht held that the award did not breach German public policy by obliging the Seller alone to bear the consequences of the U.S. embargo because the Seller had failed to demonstrate and prove that it was actually inhibited by the embargo from fulfilling its contractual obligations. It also held that by granting compound interest to the Buyer the award did not breach German public policy because the remedy was allowed by the law of the seat i.e. English law. It also dismissed the Seller’s allegation that the award was made in breach of its right to be heard because it had not been properly informed about the existence of the Buyer’s counterclaims during the arbitration. The Seller had various opportunities to bring these objections before the GAFTA Board of Appeal or before the London High Court but had failed to do so. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
