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- NETHERLANDS 27 August 2024 Gelsenkraft
NETHERLANDS 27 August 2024 Gelsenkraft
Gerechtshof, Arnhem-Leeuwarden, 27 August 2024, Case no. 200.335.189/01
(Gelsenkraft GmbH v. UCO Lexmond B.V.)
NETHERLANDS 27 August 2024 Gelsenkraft
A German award could be granted leave for enforcement, as the applicant had supplied the necessary documents, and there were no grounds for refusal. The Arnhem Court of Appeal denied, on the facts of the case, the defendant’s argument that there had been a violation of due process, because it had been unaware of the arbitration, and that this violation also constituted a public policy ground for refusal. The Court also dismissed the argument that there was no valid arbitration clause between the parties, because the defendant had not received the GROFOR conditions, which applied to the parties’ sale contracts and contained an arbitration clause. The Court explained that the question of the validity of the arbitration agreement was to be examined under German law, the law of the seat, as the parties had not made a choice in this respect. Here, the arbitrators, applying German law, had held that the arbitration agreement was valid.
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.
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.
Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, 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.