17 - 12 - 2008


Yearbook Yearbook Commercial Arbitration, A.J. van den Berg (ed.), Vol. XXXV (2010)
Jurisdiction Germany

Germany 125. Oberlandesgericht, Munich, 17 December 2008

Related topics

The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)

The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

Procedure for enforcement in general

The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

Original or copy arbitral award

The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

Original or copy arbitration agreement

The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

Authentication and certification

The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

Translation (paragraph 2)

The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

Burden of proof on respondent

Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

Ground a: Arbitrability

Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

Irregularities in the arbitral procedure (see also Art. V(1)(b))

Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

Other cases

More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.

Domestic law on enforcement of foreign award