PIL instrument(s)

Case number and/or case name

OLG Düsseldorf, 21.5.2007 – 3 W 13/07

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

20 May 2007

Appeal history

CJEU's case law cited by the court

Summary

The parties argued on payment claims concerning product development projects. The contract between the parties contained a clause stating the jurisdiction of an arbitration court in Spain. The claimant had brought an action before a Spanish civil court which had denied its jurisdiction given the arbitration clause in the contract concluded between the parties. The claimant then brought another action regarding the contractual claims before the German first instance civil court. The German civil court recognized the Spanish civil court’s judgment and rejected the claim. This judgment was contested by the claimant. The second instance court confirmed the Regional Court’s judgment. It stated that the recognition of a foreign judgment wasn’t contrary to Art. 1 (2) (d) Brussels I if the foreign court had denied its jurisdiction concerning an action for payment and had also stated the jurisdiction of an arbitration court. For the purpose of the application of Brussels I the subject matter of proceedings was decisive (here: payment). This wasn’t influenced by the fact which preliminary issue had been raised. The court’s judgment promotes a restrictive interpretation of the exception rules in Art. 1 (2) Brussels I which in principle is welcome. The claimant’s action concerned the payment from contractual obligation and therefore the subject matter didn’t directly affect arbitration issues. The Regulation aims to exclude judgments preparing an arbitration proceeding between the parties. The simple fact that the contract contains a clause on arbitration proceedings can’t activate the exception rule in Art. 1 (2) (d) Brussels I. Therefore the judgment stating to not exclude these issues from the Regulation’s scope of application can be considered correct. But German scientific literature doesn’t uniformly assume that these kinds of judgments can be recognized in another Member State. They in fact don’t concern a substantive decision. This aspect of the second instance court’s judgment has to be criticized.