AS TO THE ADMISSIBILITY OF
Application No. 18479/91
by Jakob BOSS Söhne KG
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on 2
December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 June 1991 by
Jakob BOSS Söhne KG against the Federal Republic of Germany and
registered on 9 July 1991 under file No. 18479/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
18479/91- 2 -
THE FACTS
The applicant company is a commercial limited partnership which
is registered in Albstadt, Germany. In the proceedings before the
Commission it is represented by Messrs. Thümmel, Schütze and Partner,
lawyers in Stuttgart.
By decision of 5 December 1985 the Stuttgart Regional Court
(Landgericht) granted the action of an Italian company against the
applicant company for the enforcement of an arbitration award given by
the ICC Court of Arbitration on 10 December 1983. According to that
award, the applicant company had to pay 577,260,032 Italian Lire,
213,595 DM and 11,703 US Dollars to the plaintiff company. According
to the findings of the court, the two companies involved had agreed to
have disputes between them decided by an arbitration court. The
applicant company's objection, namely that the arbitration award was
null and void because it had been given out of time, had already been
raised without success before a first instance court in Brussels, and
had been considered to be unfounded. The Regional Court considered
that the time-limit in question had been prolonged in the arbitration
proceedings and in any event, even if the proceedings had not been
prolonged in accordance with the applicable rules of procedure, this
would not constitute a violation of fundamental procedural rights as
the applicant company had not thereby been affected in its right to be
heard.
On appeal the Stuttgart Court of Appeal (Oberlandesgericht)
quashed the Regional Court's judgment on 22 December 1986. The
appellate court found that the applicant company had not been heard in
the arbitration proceedings on the question of whether there had been
reason to prolong the arbitration proceedings. Contrary to the first
instance court, the appellate court considered that this circumstance
constituted a violation of the procedural 'ordre public'.
The plaintiff company then lodged an appeal on points of law
(Revision). On 14 April 1988 the Federal Court (Bundesgerichtshof)
quashed the appellate court's judgment and dismissed the appeal against
the first instance judgment the validity of which was thereby restored.
The Federal Court stated that in view of the fact that the
International Arbitration Court had not replaced the arbitrator, but
rather confirmed him in his office repeatedly, the defendant's argument
that the protocol concerning the arbitration proceedings had been
forged in order to show that the arbitration proceedings had been
prolonged was irrelevant. The Federal Court pointed out that the
applicant company had been informed of the arbitration proceedings and
of the appointment of the arbitrator. It had not been prevented by the
prolongation of the arbitration proceedings from pleading its case.
Therefore the prolongation of the arbitration proceedings did not
violate the German 'ordre public' even if the rules on the arbitration
procedure had not been fully respected.
The applicant company then lodged a constitutional complaint
which was rejected by the Federal Constitutional Court (Bundesver-
fassungsgericht) on 10 December 1990 as being clearly unfounded. The
Federal Constitutional Court considered that the decisions of the
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German courts complained of did not violate any fundamental rights,
because, even supposing that the right to a fair hearing as guaranteed
by Article 103 (1) the Basic Law (Grundgesetz) applied to arbitration
proceedings, the fact alone that the applicant company had allegedly
not been heard on the question of whether the arbitration proceedings
could be prolonged, did not violate its right to be heard on the
merits. Furthermore the Constitutional Court stated that the applicant
company had not shown that it was prevented from submitting relevant
arguments in the arbitration proceedings which would have justified
another decision in its favour.
COMPLAINTS
The applicant company first submits that it did not tacitly
renounce the rights guaranteed under Article 6 of the Convention by
entering voluntarily into an arbitration agreement. It considers that
Article 6 para. 1 of the Convention was violated in that the German
courts enforced the final arbitration award and rejected its valid
objections, thereby depriving it of the adequate instruments to remedy
severe breaches of the principle of a fair trial.
According to the applicant company, its right to a fair trial had
been violated in the arbitration proceedings by lack of impartiality
and independence of the arbitrator who had based his decision on
evidence submitted by the plaintiff company without taking into
consideration the position of the applicant company and without
examining whether the evidence had not been forged. Furthermore the
arbitration proceedings were unfair because the applicant company had
not been given an opportunity to be heard in respect of the extensions
of the time-limits for the termination of these proceedings, while,
according to the ICC rules, the time-limit could only be extended
exceptionally under special circumstances, but under no circumstances
automatically as had been done in its case.
THE LAW
The applicant company complains that the German courts
acknowledged as valid and enforceable an arbitration award given
against it in arbitration proceedings that had allegedly been unfair
and violated Article 6 para. 1 (Art. 6-1) of the Convention which
provides in its first sentence:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission first observes that the applicant company had
voluntarily entered into an arbitration agreement and thereby renounced
its right to have its civil rights determined in court proceedings for
the conduct of which the State is responsible under the Convention (cf.
No. 11960/86, Dec. 13.7.90, unpublished).
18479/91- 4 -
This does not mean, however, that the respondent State's
responsibility is completely excluded (cf. No. 13258/87, Dec. 9.2.90)
as the arbitration award had to be recognised by the German courts and
be given executory effect by them. The courts thereby exercised a
certain control and guarantee as to the fairness and correctness of the
arbitration proceedings which they considered to have been carried out
in conformity with fundamental rights and in particular with the right
of the applicant company to be heard.
The Commission cannot find - also taking into account the
applicant company's submissions - that the reasons given by the German
courts disclose any arbitrariness which would amount to a violation of
Article 6 (Art. 6) of the Convention.
It follows that the application has to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER)(C.A. NØRGAARD)
Full & Egal Universal Law Academy