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CISG CASE PRESENTATION

Germany 19 December 2012 Appellate Court Hamburg (Dried onions case)
[Cite as: http://cisgw3.law.pace.edu/cases/121219g1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20121219 (19 December 2012)

JURISDICTION: Germany

TRIBUNAL: OLG Hamburg [OLG = Oberlandesgericht = Provincial Court of Appeal]

JUDGE(S): Dr. Buchholz, Dr. Meyer-Abich, Dr. Hinrichs

CASE NUMBER/DOCKET NUMBER: 6 Sch 18/12

CASE NAME: German case citations do not identify parties to proceedings

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany

BUYER'S COUNTRY: Czech Republic

GOODS INVOLVED: Dried onions


Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 1(1)(a) ; 6 ; 14 [Also cited: Article 18 ]

Classification of issues using UNCITRAL classification code numbers:

1B1 [Parties in different Contracting States (art. 1(1)(a))];

6A [Exclusion or modification of Convention by contract];

14B ; 14B1 [Proposal to one or more specific persons: ; 14B1 Public offers: invitation to make offer, unless clear intent to be bound]

Descriptors: Applicability ; Choice of Law ; Exclusion of Convention ; Formation of Contract

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Editorial remarks

EDITOR: Nathalie Hofmann

Facts:

The case concerns the question whether standard business terms including an arbitration clause and a choice of law clause (German law under exclusion of the CISG) were incorporated into a contract. The standard business terms have not been sent to the Buyer but referred to in the order acceptance (several times during a long term business relationship).

Decision:

The court refers the parties to arbitration, finding that the standard business terms, including the arbitration clause, were incorporated into the contract. The finding is based on these considerations of the court:

German law is applicable to the arbitration agreement either because

a)  The application of German law to the arbitration agreement follows directly from 1059(2)No. 1 a German Code of Civil Procedure (German law as default law applicable to the arbitration agreement, if no valid choice was made)
  or
b)  the application of German law to the arbitration agreement follows from the applicability of German law to the main contract (despite Art. 1(2)(e) Rome-I-Regulation excluding arbitration agreements from its application).

The court leaves this dogmatic dispute open, finding that opinion b also leads to German law, because German law has been chosen as the law applicable to the contract, which also applies to questions of contract conclusion (Art. 10(1) Rome-I-Regulation). Under German law, the standard business terms were duly incorporated. The standard business terms exclude the CISG and Art. 6 CISG allows such an express exclusion.

Then the Court makes some hypothetical considerations: The result would be different, if Czech law, including the CISG, could be exceptionally applicable under Art. 10(2) Rome-I-Regulaton. Different from German law, Arts. 14, 18 CISG would require that the text of the contract, including all standard business terms, are sent to the contract partner. Here, the standard business terms were only incorporated by reference but their text was not provided to the Buyer.

However, the court finds that the exception of Art. 10(2) Rome-I-Regulation does not come into play, as it is not unreasonable to apply German law, given the long term business relationship between the parties.

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (German): Unavailable

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated May 15, 2013
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