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Case 401: Art. IV NYC; Art. 35 II amended
Germany: Highest Regional Court of Bavaria; 4Z Sch 5/00
11 August 2000
Original in German
Published in: Betriebs-Berater, Beilage 12 zu Heft 50/2000 (RPS-2/2000), p. 10 (with commentary
Lachmann, p. 8); BayOblGZ Nr. 52/2000; DIS Online Database on Arbitration Law The decision dealt with the formal requirements for an application to have a foreign award declared enforceable in Germany.
The case arose out of a construction contract between a Russian and a German party. The Russian Claimant, who had obtained an arbitral award in Russia, was seeking enforcement of that award before the competent state court in Germany. Respondent argued that the award was not enforceable since Claimant had neither presented an original arbitration agreement nor a duly certified copy thereof as required by article IV (1) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
The Court recognized the arbitral award as binding and declared it enforceable. The Court held that pursuant to section 1061 (1) German Code of Civil Procedure, recognition and enforcement of foreign arbitral awards should be granted in accordance with the New York Convention. Contrary to Respondent's assertion, the requirements for recognition and enforcement as stated in article IV (1) of the Convention, i.e., the presentation of the award and the arbitration agreement (both either as the original or as a duly certified copy thereof), are not intended to provide the exclusive standards for enforceability. Article VII (1) of the New York Convention provides that its provisions should not deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. According to section 1064 (1) German Code of Civil Procedure the application for a declaration of enforceability of an arbitral award merely requires the presentation of the award or a certified copy thereof. Thus, recognition and enforcement of the award was not precluded by the New York Convention but admissible under the more favourable domestic law.
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CASE LAW ON UNCITRAL TEXTS (CLOUT)
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