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GERMANY 173
● Bundesgerichtshof, 27 March 2025, I ZB 64/24
(Claimant v. Respondent 1 and Respondent 2)
GERMANY 173
The German Federal Supreme Court affirmed the decision of the Higher Court of Appeal of Bavaria, which had denied the petition of the claimant, the Czech Republic, to recognize and enforce a costs award rendered in The Hague against two investors, Antaris Solar GmbH and Dr. Michael Göde, in an arbitration under the Energy Charter Treaty and the BIT between Germany and the Czech and Slovak Federal Republic. The Supreme Court agreed with the finding of the lower court that, due to the intra-EU nature of the dispute, and in light of the Achmea decision of the CJEU, the arbitration agreement at issue was not valid under the applicable EU law.
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.
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.