PIL instrument(s)

Case number and/or case name

OLG Frankfurt a. M., 13.7.2005 – 20 W 239/04

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

12 July 2005

Appeal history

CJEU's case law cited by the court

Summary

The applicant requested the first instance to grant an enforcement clause to the judgment of the High Court of Justice. Among other aspects, the English judgment was based on an English arbitration ruling. The previous instance declared the judgment enforceable. The defendant appeals against this court order before the Higher Regional Court Frankfurt. In Romania, the underlying English arbitration ruling was not declared enforceable. The court declares that the appeal is not admissible. It follows the previous instance in its argument that the judgment of the High Court of Justice is a civil judgment within the meaning of Art. 38, 32 Brussels I. The fact that the judgment was based on an arbitration ruling is irrelevant as the judgment contains a separate payment order. The court states that it is disputed under which requirements a foreign judgment that only declares an arbitration ruling enforceable may be declared enforceable by German courts. After discussing this situation that is not relevant in the given case, the court recurs to the Brussels I Regulation and discusses if Art. 1 (2) (d) forbids the application of the Regulation. Again the court weighs up the arguments and then states that the given English ruling not only declares the arbitration ruling enforceable but also includes a separate payment order. Art. 1 (2) (d) therefore does not apply. It then continues to examine whether there are any grounds for refusal of the declaration of enforceability as the defendant claimed. The court focuses on the question whether the refusal of declaration in Romania induces the incompatibility (Art. 34 (4) Brussels I) of this decision with the declaration of enforceability in Germany. The court again states that the English judgment also includes a separate payment order. It also holds that the Romanian judgment does not have legal consequences that are incompatible with the decision of the High Court of Justice. The court mistakenly applies Art. 34 (4) Brussels I directly, although it is only applicable to judgments of state courts, not arbitration tribunals. Other than that, the judgment of the OLG Frankfurt is very elaborate and precise. It considers many contributions of German scientific literature, takes into account all relevant aspects and discusses the decisive issues broadly.