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GERMANY 172
Bundesgerichtshof, First Civil Chamber, 9 March 2023, I ZB 33/22
(Not indicated (in fact, Mr H) v. Not indicated (in fact, Eckes-Granini International GmbH et ... Read more
Bundesgerichtshof, First Civil Chamber, 9 March 2023, I ZB 33/22
(Not indicated (in fact, Mr H) v. Not indicated (in fact, Eckes-Granini International GmbH et al.))
GERMANY 172
A Russian award was denied recognition because the arbitral tribunal had exceeded the personal and substantive scope of the arbitration clause. The claimant had commenced arbitration based on the arbitration clause in an agreement concluded with defendant 1 to settle their mutual claims, but had then sought – and been awarded – damages under a different agreement concluded with other companies of the same group (defendants 1 to 4) to regulate their future relationships. See also BELGIUM 17 and HUNGARY 17, rendered in the same case.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
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.
The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.
Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.
Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.