Germany / 12 February 1976 / Bundesgerichtshof / III ZR 42/74
| Country | Germany |
| Court | Germany, Bundesgerichtshof (Federal Court of Justice) |
| Date | 12 February 1976 |
| Case number | III ZR 42/74 |
| Applicable NYC Provisions | VII | V | II | VII(1) | V(1)(c) | II(2) | II(1) |
| Source | Original decision obtained from the registry of the Bundesgerichtshof |
| Languages | English |
| Summary | In relation to a dispute regarding a sale purchase agreement for lard, the Seller obtained a favourable award from the Arbitration Commission of the Chamber of Commerce of the Romanian People’s Republic. The Buyer had refused to participate in the arbitration proceedings, arguing that the 6-month time limitation contained in the arbitration clause had lapsed. The Seller subsequently sought enforcement of its award in Germany, but the Landgericht (Regional Court) Frankfurt refused enforcement. The Oberlandesgericht (Higher Regional Court) Frankfurt confirmed the refusal and annulled the award, finding that the arbitrators had breached the terms of the arbitration agreement regarding the 6-month statute of limitations (giving rise to a non-enforcement ground under Article V(1)(c) NYC) and that the arbitral tribunal’s lack of jurisdiction constituted an “extreme case” justifying both refusal of enforcement and annulment. The Bundesgerichtshof (Federal Supreme Court) did not agree with the Oberlandesgericht’s decision on enforcement and remanded the case back to the Oberlandesgericht for reconsideration. It also reversed the annulment of the award, holding that an award falling under the NYC i.e. made in the territory of another Contracting State, may be annulled by a German court only if the award had been made pursuant to German law (which was not the case here). The Bundesgerichtshof held that the parties had validly concluded an arbitration agreement in writing as required by Articles II(1) and II(2) NYC. Although the arbitration clause was only contained in the General Conditions for the Sale and Delivery, it was inserted by the parties’ representatives in the signed contract itself, or at least attached to it as an exhibit. However, in relation to the scope of the arbitration agreement and the six-month time limit, the Bundesgerichtshof held that the arbitration clause was ambiguous and that the jurisdiction of the arbitral tribunal after the six-month period was not explicitly excluded. The Bundesgerichtshof held that the facts discussed by the Oberlandesgericht did not allow for the conclusion that the arbitral tribunal had arbitrarily – and without any basis in the contractual provisions – assumed jurisdiction over the dispute. |
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Attachment (1)
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