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GERMANY 2024-2
Kammergericht, Berlin, 12th Civil Chamber, 26 January 2023, No. 12 Sch 7/21
(Deutsche Telekom AG v. Republic of India)
GERMANY 2024-2
The Court granted the recognition of a Swiss award rendered under a BIT, finding that the recognition application was admissible because India did not enjoy sovereign immunity, as the award was rendered in a dispute concerning a commercial contract covered by the BIT. Also, there were no grounds for refusal under Art. V of the New York Convention, since it was not proven that the conduct of the arbitration violated international public policy, that is, contradicted the foundations of state and economic life. Specifically, India’s right to be heard had been safeguarded, and there was no evidence of fraudulent or abusive behavior on the part of Deutsche Telekom. Exercising its discretion under Art. VI of the Convention, the Court refused to stay proceedings, even though an annulment action against the award was pending in Switzerland. The Court explained that Deutsche Telekom’s interest in obtaining a prompt decision prevailed, also taking into account that India could appeal the recognition decision if the award were later annulled.
The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).
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 general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
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.
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.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
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.
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.
The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.