Germany / 27 March 2006 / Germany, Oberlandesgericht Karlsruhe / 9 Sch 02/05
Country | Germany |
Court | Germany, Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) |
Date | 27 March 2006 |
Case number | 9 Sch 02/05 |
Applicable NYC Provisions | VII | V | VII(1) | V(2)(b) | V(1)(b) |
Source | Original decision obtained from the registry of the Oberlandesgericht Karlsruhe |
Languages | English |
Summary | The Applicant applied to the Oberlandesgericht (Higher Regional Court) Karlsruhe for recognition and enforcement of an arbitral award rendered in its favour by an arbitral tribunal in Ukraine under the arbitration rules of the International Commercial Arbitration Court (“ICAC”) of the Ukrainian Chamber of Commerce and Industry. The Respondent opposed the enforcement application contending that (i) it had not received the arbitral award on March 1, 2005 as alleged by the Applicant, (ii) the arbitral tribunal had violated due process by refusing to grant the Respondent’s request for postponement of the oral hearing, and (iii) the arbitral award was entirely arbitrary. The Oberlandesgericht declared the award enforceable, holding that the Respondent was precluded from raising objections to enforcement at this stage since it had failed to challenge the award on those grounds at the seat of the arbitration within the applicable time limits. The Oberlandesgericht noted that it was long accepted in German case law that objections to enforcement could only be considered in enforcement proceedings if an admissible annulment application was not yet time-barred at the seat of the arbitration. According to the Oberlandesgericht, the applicable time limit had lapsed even if the Respondent had not received the arbitration award on March 1, 2005, as it would have received the award in June 2005 at the latest. The Oberlandesgericht further noted that although Article V NYC did not contain such a preclusion rule, the NYC did not prevent, either by virtue of its international character or as part of the domestic law (pursuant to Section 1061 of the German Civil Procedure Code), the German courts from using a more permissive approach to the grounds for rejecting enforcement in accordance with Article VII NYC. Moreover, the Oberlandesgericht noted that Section 1059(2) of the German Civil Procedure Code contained a preclusion rule in relation to missed domestic annulment proceedings and that foreign preclusion rules should equally be given effect to ensure legal certainty in relation to arbitration awards. The Oberlandesgericht held that, in any case, the enforcement application was without merit. The Oberlandesgericht found that the Respondent’s right to be heard (Article V(1)(b) NYC) had not been violated by the tribunal’s refusal to postpone the oral hearing, adding that the Respondent could have sent a suitable representative and that a further postponement of the hearing date would have resulted in a disregard of the Applicant’s interest in legal protection. The Oberlandesgericht further held that the Respondent’s allegation as to the arbitrariness of the award was baseless and therefore there had been no violation of public policy under Article V(2)(b) NYC. The Oberlandesgericht noted that a public policy violation could be assumed only when the arbitral tribunal’s reasoning could no longer be followed and that a review of the content of the award on the merits was not permissible. Finally, the Oberlandesgericht held that it could decide on the application for the declaration of enforceability without conducting an oral hearing due to the fact that the grounds raised by the Respondent for denying enforcement had been precluded and its further allegations had not been sufficiently substantiated. |
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Attachment (1)
Original Language Adobe Acrobat PDF |