Bundesgerichtshof; 2020-11-26; I ZR 245/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:261120UIZR245.19.0
Date: 2020-11-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE1126(51)_ENG_SUMJURE
JURE summary
JURE summary
Based on an assigned right from a person the plaintiff had insured, the plaintiff domiciled in Germany (hereinafter ‘the plaintiff’) sought compensation for payments for allegedly contaminated mace blossoms from the supplier of the herbs domiciled in the Netherlands (hereinafter ‘the defendant’).
The person insured by the plaintiff bought from the defendant 1,500 kg of ground mace blossoms per three orders, with all orders having been confirmed by the defendant in writing. The signature line for the insured as the buyer remained empty on the orders. The orders contained the reference to the terms and conditions of the association Nederlandse Vereniging voor de Specerijhandel (hereinafter ‘the NVS terms and conditions’). Among other, these terms and conditions provided for an arbitration clause and the Dutch law being the applicable law.
The Landgericht Bremen (hereinafter ‘the Court of First Instance’) issued within the preliminary proceedings conducted in writing a partial default judgment. In its objection, the defendant claimed that the arbitration clause had not been taken into account. Subsequently, the Court of First Instance rejected the action citing that the arbitration clause laid down in the NVS terms and conditions had been effectively incorporated in the respective purchase agreements.
The appeal of the plaintiff lodged with the Hanseatisches Oberlandesgericht Bremen (hereinafter ‘the Court of Appeal’) led to a referral of the case back to the Court of First Instance.
With its revision filed with the Bundesgerichtshof (hereinafter ‘the Supreme Court’), the defendant unsuccessfully sought that the decision of the Court of First Instance be restored.
The Court of Appeal was correct to consider the arbitration objection of the defendant to be unjustified due to the ineffective arbitration clause.
The international jurisdiction of the German courts followed from Article 7(1)(1)(b), Article 63(1) and Article 66(1) of the Brussels I Regulation (recast) (1).
Even though the defendant made the arbitration claim correctly prior to the start of the oral hearings, formal preconditions regarding an effective clause under Article II(2) UNÜ (2) had not been fulfilled. No arbitration agreement made in writing and signed by both parties existed. In addition, there was no confirmation in writing regarding the arbitration clause which could have been interpreted as approval of the arbitration clause. The NVS terms and conditions had not been effectively incorporated into the agreement.
The Supreme Court dismissed the revision of the defendant against the decision of the Court of Appeal.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958).