Germany / 02 November 1983 / Oberlandesgericht Hamm / 20 U 57/83
| Country | Germany |
| Court | Germany, Oberlandesgericht Hamm (Higher Regional Court of Hamm) |
| Date | 02 November 1983 |
| Case number | 20 U 57/83 |
| Applicable NYC Provisions | V | V(2)(b) | V(2)(a) |
| Source | Original decision obtained from the registry of the Oberlandesgericht Hamm |
| Languages | English |
| Summary | A German company obtained a favourable award in an International Chamber of Commerce (ICC) arbitration against an Italian company that had been placed under a regime of special administration and was being represented by a state-appointed commissario. The Landgericht (Regional Court) Bielefeld declared the award enforceable. The Italian company appealed, claiming that it had not been duly represented during the arbitral proceedings because the commisario’s authority to represent the company did not extend to arbitral proceedings. The Oberlandesgericht (Higher Regional Court) Hamm confirmed the Landgericht’s declaration of enforceability. The Oberlandesgericht stated that enforcement may be denied only if (i) the party opposing enforcement proves the existence of any grounds for refusing enforcement under Article V(1) NYC or (ii) the court establishes grounds under Article V(2)(b) NYC. The Oberlandesgericht further stated that non-enforcement grounds under German domestic law could only be considered in the context of the public policy defence under Article V(2)(b) NYC. The Oberlandesgericht found that there were no grounds under Article V(2) NYC to refuse recognition and enforcement of the award. It found that the subject matter in dispute was arbitrable since it concerned a commercial matter (Article V(II)(a) NYC) and that the declaration of enforceability did not contradict German public policy (Article 5(II)(b) NYC). In particular, the Oberlandesgericht held that even if the Italian party were to have been prevented from continuing to participate in the arbitration under Italian law as a result of the establishment of the Italian regime of special administration, this would not justify a finding that the enforcement of the arbitral award violates German public policy. Furthermore, the Oberlandesgericht held that there was no basis for assuming a violation of German public policy in relation to the Italian party’s right to be heard, since the Italian party had not shown that its right to be heard had been severely violated. Finally, the Oberlandesgericht held that since no objections were raised during the arbitration proceedings regarding the Italian party’s representation, it should be deemed that it had accepted any such alleged irregularities. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
