Oberster Gerichtshof; 2018-12-19; 3 Ob 153/18y
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0030OB00153.18Y.1219.000
Date: 2018-12-19
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT1219(52)_ENG_SUMJURE
JURE summary
JURE summary
In Austria, a German citizen, auditor and tax consultant, (hereinafter 'the plaintiff') requested the execution of an arbitration award against a limited liability company based in Cyprus (hereinafter 'the defendant') and the seizure of the defendant's share of a limited liability company based in Vienna.
According to the award of the International Court of Arbitration in Stockholm (hereinafter ‘the Stockholm Arbitration Court’), the defendant should repay the plaintiff an amount of several millions owed from a loan agreement.
The Bezirksgericht Innere Stadt Wien (hereinafter ‘the Court of First Instance’) granted both of the above requests.
The defendant appealed against the decision of the Court of First Instance in the Landesgericht für Zivilrechtssachen (hereinafter ‘the Court of Appeal’). The copy of the arbitration award, which served as the basis for the request, had only certified the signature of the secretary-general, but not the signatures of the arbitrators.
In reply to the appeal, the plaintiff states that strict compliance with the authenticity of the signatures is only justified if there was reason to question the authenticity of the award.
The Court of Appeal complied with the defendant's appeal and amended the decision of the Court of First Instance to dismiss the requests. A subsequent submission of the award with certified signatures breached the prohibition of novation because the permission for novation applied to the defendant only.
The plaintiff however brought an extraordinary appeal on points of law in the Oberster Gerichtshof (hereinafter ‘the Supreme Court’) and demanded restoration of the decisions of the Court of First Instance.
The Supreme Court ruled that the appeal on points of law is admissible and justified.
If there is a lack of necessary credentials in a lawful document (1), this amounts to a formal defect, which can be remedied by a request of improvement (2). In this case the improvement is to be carried out ex officio (3).
The defendant does not require protection (4) against false arbitration awards because these are merely formal deficiencies. The defendant does not dispute the existence of the arbitration award or the authenticity of the arbitrators’ signatures in the defendant’s appeal.
The reasons for the refusal to recognise a foreign arbitration award are exhaustively listed in Article V NYC. These reasons must either be invoked by the defendant or they must be examined ex officio. However, they cannot be examined in actual or legal terms (5), but only in the sense of a breach of the public policy of the executing state.
The defendant cannot invoke the violation of the right to be heard in court or the right to a fair trial. The arbitration court dealt with the so-called Hard-Sun (6) counterclaim of the defendant and justified the non-admission of this proof as completely sufficient.
The Supreme Court complied with the plaintiff's appeal on points of law, overturned the decisions of the lower courts and charged the Court of First Instance with a new decision after supplementary proceedings.
(1) Article IV of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (NYC).
(2) §§ 84, 85 of the Zivilprozessordnung (ZPO) (Code of Civil Procedure).
(3) § 84 ZPO: ‘Unless this law establishes otherwise, the Court shall order the remedy of formal defects that are likely to prevent the proper procedural treatment of a presented legal document of its own motion.’
(4) Article IV NYC.
(5) Prohibition of review of the arbitration award.
(6) The loan agreement was concluded in 2011. The Hard-Sun transaction – alleged payments made by the defendants without Consideration – took place in 2009 and therefore cannot have arisen from the Loan agreement.