KluwerArbitration
Document information
Publication
Yearbook Commercial
Arbitration 2021 -
Volume XLVI
Jurisdiction
Germany
Court
Federal Court of
Justice of Germany
Case date
26 November 2020
Case number
I ZR 245/19
Parties
Claimant, Not indicated
Defendant, P. V. & Z.
Key words
objection of lack of
jurisdiction to be raised
before defence on
merits
existence of valid
arbitration agreement
under Art. II of 1958
New York Convention
more-favorable-right
provision applies by
analogy to enforcement
of arbitration
agreement
more-favorable-right
provision also refers to
domestic conflict-of-law
provisions
incorporation of
arbitration clause by
reference to standard
conditions under CISG
applicable law to
existence, validity of
arbitration agreement
Applicable
legislation
New York Convention,
© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Germany No. 2021-2, Parties not indicated,
Bundesgerichtshof, First Civil Chamber, I ZR 245/19, 26
November 2020
The Federal Supreme Court affirmed the decision of the appellate court, which had denied the
(timely raised) application to refer a dispute in respect of a sales contract to arbitration in
Amsterdam, finding that there was no valid arbitration agreement between the parties. The formal
requirements of Art. II(2) of the 1958 New York Convention were not met, because there was
neither a signed agreement nor an exchange of communications between the parties. There was
a reference in the confirmation letter sent by the defendant to the standard conditions of the
Netherlands Spice Trade Association (NVS), which contained an arbitration clause, but the
confirmation letter was not signed by the claimant, and the conditions had not been attached to
the confirmation letter. The Supreme Court then applied German law under the more-favorable-
right provision in Art. V(1) of the Convention. German law, it noted, included the CISG; further, the
more-favorable-right provision also referred to German conflict-of-law rules. The Court held that
there was no valid arbitration agreement under German law because no arbitration agreement
was contained in a document signed by the parties or in an exchange of communications
between them, and because the reference to the NVS Conditions in the confirmation letter did not
validly incorporate the arbitration clause therein into the parties' sales contract in accordance with
the CISG. No different conclusion could be reached by applying German conflict-of-law rules,
according to which the formal validity of international arbitration agreements was determined
under Art. V(1)(a) of the New York Convention. Although this provision concerned exequatur
proceedings, its application by analogy in proceedings for the enforcement of arbitration
agreements was necessary, in the Court's opinion, to avoid possible contradictory results at the
stage of the enforcement of the arbitration agreement and the stage of the enforcement of the
ensuing award. Since the parties had not specifically provided for the law applicable to the
arbitration agreement, the law of the place where the award would be rendered – Amsterdam –
applied. Dutch law incorporated the CISG, and the conditions for a valid incorporation of the NVS
Conditions into the contract under the CISG were not complied with.
2021-2. Bundesgerichtshof [Supreme Court], First Civil Chamber, 26 November 2020, I ZR
245/19 (1)
Summary
The German holder of the insurance policy of the present Claimant (the Policy Holder), as the buyer,
purchased a total of 1,500 kg ground mace from P. V. & Z. (Defendant) in three deliveries. All
orders were confirmed by Defendant by confirmation letters – named “sales contract” – dated 18
April, 23 May and 25 June 2012. The confirmation letters stated: “We confirm that we have sold
you…. Conditions of contract: according to the Netherlands Spice Trade Association (Nederlandse
Vereniging voor de Specerijhandel (NVS)).” The footer of the letter stated: “All sales and contracts
are subject to general conditions of sale and delivery.”
The Conditions of the Netherlands Spice Trade Association (the NVS Conditions) provided for
Dutch law as the governing law – excluding the 1980 United Nations Convention on Contracts for
the International Sale of Goods (CISG) – and for arbitration of disputes in the Netherlands (Art. 16).
Defendant's General Conditions of Sale and Delivery provided instead for the jurisdiction of the
competent court in the district where the other party had its registered office. Neither the NVS
Conditions nor Defendant's General Conditions of Sale and Delivery were attached to the
confirmation letters.
The confirmation letters were signed by Defendant; only one, which did not concern the delivery at
issue in the present proceeding, was signed by the Policy Holder and returned to Defendant.
A dispute arose between the parties in respect of a delivery, which allegedly contained
contaminated goods. Claimant, on behalf of the Policy Holder, sought compensation from
Defendant of the amount of € 105,948.40 that the Policy Holder had paid to a third party.
On 9 February 2016, the Court of First Instance (Landgericht) in Bremen rendered a default
decision against Defendant in preliminary proceedings held on documents only. Defendant
appealed, claiming that the dispute should be referred to arbitration pursuant to Art. 16 of the NVS
Conditions. On 21 March 2017, the Court of First Instance granted the arbitration objection and
1
 1958
Publication Source
Available online at
<https://juris.bundesgerichtshof.de/cgi-
bin/rechtsprechung/document.py? cassation (Revision).
Gericht=bgh&Art=en&Datum=Aktuell&Sort=8193&Seite=11&nr=112973&pos=338&anz=484
Bibliographic
reference
'Germany No. 2021-2,
Parties not indicated,
Bundesgerichtshof, First Civil
Chamber, I ZR 245/19, 26
November 2020', in Stephan
W. Schill (ed), Yearbook
Commercial Arbitration 2021
- Volume XLVI, Yearbook
Commercial Arbitration,
Volume 46 (© Kluwer Law
International; ICCA & Kluwer
Law International 2021) pp. 1
- 21
© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
dismissed the action.
On 8 February 2019, the Bremen Court of Appeal (Oberlandesgericht) annulled the attacked
decision, holding that the arbitration clause in the NVS Conditions had not been validly incorporated
into the parties' contract evidenced by the confirmation letter. Defendant filed a request for
By the present decision, the Federal Supreme Court, before Koch, president, and Schaffert, Pohl,
Schmaltz, and Odörfer, JJ, denied the cassation request, finding that there was no valid arbitration
agreement between the parties.
The Supreme Court noted at the outset that Defendant had raised the arbitration objection in a
timely manner, that is, before the oral hearing on the merits. Since no specific formality had to be
observed for raising such objection, it sufficed that Defendant had made it clear that it wished the
case to be decided by an arbitral tribunal, not the state court seized. The default decision rendered
in the preliminary proceeding on documents only did not affect this conclusion.
Proceeding to the merits, the Supreme Court affirmed the finding of the appellate court that no valid
arbitration agreement existed between the parties.
The Court first noted that the formal requirements of Art. II(2) of the 1958 New York Convention,
which applied here because both Germany and the Netherlands were Convention states, were not
met: there was no signed agreement, and there had been no exchange of communications. The
mere uniliateral reference to the NSV Conditions in the confirmation letter sent by Defendant, and
not signed by the Policy Holder, did not suffice.
However, explained the Court, where the formal requirements of the Convention were not met, an
arbitration agreement could still be found to be valid under a more favorable domestic law – here,
German law – which came to be applicable pursuant to the more-favorable-right provision in Art.
VII(1) of the Convention.
The Supreme Court found, however, that there was no valid arbitration agreement under the more
favorable German domestic law either – specifically, under Sect. 1031 of the German Code of Civil
Procedure (Zivilprozessordnung – ZPO) – because no arbitration agreement was contained in a
document signed by the parties or in an exchange of communications between them. The reference
to the NVS Conditions in the confirmation letter unilaterally sent by Defendant to the Policy Holder
did not validly incorporate the arbitration clause in the NSV Conditions into the parties' sales
contract.
As correctly held by the lower court, reasoned the Supreme Court, the issue of incorporation by
reference was to be resolved according to substantive law – here, German law. German law
included the CISG, which applied because the contract at issue was a contract for the sale of goods
between parties having their seat in different CISG States, Germany and the Netherlands. The Court
acknowledged that the question of whether and to what extent the CISG applied to arbitration
agreements was disputed, but noted that the predominant doctrinal view opined that Art. 14 to Art.
24 CISG, on contract formation, also applied to the incorporation of an arbitration agreement into a
sales contract governed by the CISG. According to those CISG provisions, the NVS Conditions
including the arbitration agreement had not been validly incorporated into the sales contract
between the parties. In the absence of specific rules in the CISG on the incorporation of standard
conditions into a contract, the Court referred to the general interpretation rules of Art. 8, and held
that, first, there was no basis for finding that the NVS Conditions had been incorporated based on
the negotiations of the parties or the practices established between them, and, second, that the
consideration of how a “reasonable person of the same kind as the other party” would have
interpreted the offer assumed that the party had received the general conditions of contract, which
was not the case here.
The Supreme Court then held that no different result as to the lack of a valid arbitration agreement in
the present case would be reached by applying the German law provisions on conflict of laws. Such
provisions, it explained, were applicable as the more-favorable-right principle in Art. VII(1) of the
New York Convention included a reference to the country's conflict-of-law rules.
According to German conflict-of-law rules, the formal validity of international arbitration agreements
was determined by application, by analogy, of Art. V(1)(a) of the New York Convention. While this
provision explicitly concerned exequatur proceedings, its application by analogy in proceedings for
the enforcement of arbitration agreements was necessary, in the Court's opinion, to avoid possible
contradictory results: an arbitration agreement could be deemed valid under the conflict-of-law rules
of the forum in proceedings in which a party was seeking referral of the dispute to arbitration, while
the ensuing award could be denied enforcement in exequatur proceedings under the law applicable
pursuant to Art. V(1)(a).
Pursuant to Art. V(1)(a), the applicable law to an arbitration agreement was, primarily, the law
2
 chosen by the parties, and, subsidiarily, the law of the country in which the arbitral award had been
rendered – or, in respect of the enforcement of arbitration agreements, the law of the country in
which the arbitral award was to be rendered. Here, that law was Dutch law, as the arbitration was to
be held in Amsterdam. Since Dutch law incorporated the CISG, and the conditions for a valid
incorporation of the NVS Conditions into the contract under the CISG were not complied with, even
applying Dutch law the conclusion would be that no valid arbitration agreement existed.

Excerpt
I The Decision of the Court of Appeal
[1] “The appellate court deemed the arbitration agreement objection unfounded, reasoning [as
follows]:

‘The conditions for a valid arbitration agreement in Art. II(2) of the [1958 New
York Convention] are not met. However, even if the form of Art. II of the New
York Convention is not complied with, the arbitration agreement can be formally
valid by operation of the most-favorable-right principle of Art. VII of the
Convention, according to which Sect. 1031 of the German Code of Civil
Procedure [Zivilprozessordnung – ZPO] applies, because the Policy Holder of
Claimant is domiciled in Germany (Art. 11(2) of the Application Law of the Civil
Code [Einführungsgesetz zum Bürgerlichen Gesetzbuche – EGBGB].
Whether the requirements of Sect. 1031(2) and (3) ZPO are met must be
assessed in accordance with substantive law. In principle, pursuant to Art. 3(5)
and Art. 10(1) of Regulation (EC) No. 593/2008 on the law applicable to
contractual obligations (Rome I Regulation), the law applicable for assessing the
coming into existence and the validity of a choice of law agreement contained in
general conditions of contract is the law determined in the agreement. Here, that
would be Dutch law.
However, the scope of application of the United Nations Convention on
Contracts for the International Sale of Goods of 11 April 1980 (Federal Law
Gazette II 1989 p. 588; hereinafter: CISG) is an open one. In the context of the
CISG, [whose application] is not excluded by the specific contract in this case,
the incorporation of general conditions of contract is not assessed based on
conflict-of-law provisions, but based on the CISG. The conditions for
incorporation under the CISG were not met. The Bremen Court of First Instance
had international territorial jurisdiction.’”

II Analysis
[2] “The cassation request[Revision] filed by Defendant from the decision above is not successful.
The appellate court correctly concluded that Defendant's arbitration objection was unfounded, due
to the lack of a valid arbitration agreement.
[3] “The appellate court held that the German courts have international jurisdiction under Art. 7(1)(1)
(b) and Art. 63(1) of [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 (recast)] (Brussels I-bis Regulation), which applies pursuant to its Art. 66(1).
This examination is to be made at the court's initiative also in the Revision instance, in accordance
with Sect. 545(2) ZPO (see BGH, 17 October 2018 I ZR 136/17, GRUR 2019, 79 no. 11 = WRP
2019, 73 - Tork, and references therein). The request is not right in attacking [this conclusion].
[4] “The claim is admissible, but Defendant cannot successfully invoke the arbitration objection
under Sect. 1032(1) ZPO, because the arbitration agreement is invalid.
[5] “Pursuant to Sect. 1032(1) ZPO, the court shall dismiss an action as inadmissible, when it is
brought in a matter that is the subject matter of an arbitration agreement, provided the defendant
raises this objection before the commencement of the hearing on the merits, or if the court
determines that the arbitration agreement is null and void, inoperative or incapable of being
performed. In accordance with Sect. 1025(2) ZPO, the provision of Sect. 1032 ZPO also applies if
the place of arbitration is abroad or has not yet been determined.
[6] “Defendant raised the arbitration objection in a timely manner [see 1.]. However, the arbitration

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© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 objection is unfounded, because the arbitration agreement did not come validly into existence.
Neither the requirements of Art. II(2) of the New York Convention [see 2.] nor those of Sect. 1031(2)
(ZPO) [see 4.], which apply pursuant to the more-favorable-right principle of Art. VII(1) of the New
York Convention [see 3.], nor those of the law applicable by way of the national conflict-of-law rules
[see 5.], are met.”
1 Defendant Raised the Arbitration Objection in a Timely Manner
[7] “Pursuant to Sect. 1032(1) ZPO, Defendant had to raise the arbitration objection before the
commencement of the oral hearing on the merits. This provision contains a special rule for raising
an arbitration objection, which takes precedence over the general rules on estoppel
[Präklusionsvorschriften] (Sect. 276(1) second sentence, Sect. 282(3) second sentence, Sect.
296(3) ZPO). If the defendant is given a time limit to file its statement in defense, the arbitration
objection does not need to be raised within that time limit, in accordance with the clear wording of
Sect. 1032(1) ZPO and differently than under Sect. 282(3) second sentence ZPO. It suffices instead
that the objection be raised before the commencement of the oral hearing (see BGH, 10 May 2001
- III ZR 262/00, BGHZ 147, 394, 396 et seq. [juris no. 11]; Saenger, ZPO, 8 ed., Sect. 1032 no. 1;
Prütting in Prütting/Gehrlein, ZPO, 12th ed., Sect. 1032 no. 3; Schlosser in Stein/Jonas, ZPO, 23rd
ed., Sect. 1032 no. 5; Voit in Musielak/Voit, ZPO, 17 ed., Sect. 1032 no. 7;
BeckOK.ZPO/Wolf/Eslami, 38th ed. [as of 1 September 2020], Sect. 1032 no. 20; Zöller/Geimer,
ZPO, 33rd ed., Sect. 1032 no. 1; Huber, SchiedsVZ 2003, 73; differently,
MünchKomm.ZPO/Münch, 5th ed., Sect. 1032 no. 16; Schwab/Walter, Schiedsgerichtsbarkeit,
7th ed., Chapter 7 no. 2).
[8] “The objection is not subject to any form. It suffices that the defendant expresses in a sufficiently
clear manner its intention that the case be decided by an arbitral tribunal, not by the state court
seized (see BGH, 13 January 2009 - XI ZR 66/08, SchiedsVZ 2009, 122 no. 30). If the lower
instance has denied the objection, the objection must be raised again in the appeal proceeding
(BGH, 20 November 2018 - II ZR 328/17, juris no. 13 and references therein).
[9] “According to these standards, Defendant raised the arbitration objection in a timely manner. In
particular, the objection was not untimely because the Court of First Instance rendered a decision by
default against Defendant in preliminary proceedings on documents only. When Defendant
admissibly (Sects. 338-340 ZPO) raised the arbitration objection, the proceeding was restored,
pursuant to Sect. 342 ZPO, in the situation in which it was before the occurrence of the default, and
therefore at a stage before the commencement of the oral hearing (see OLG Dusseldorf, 12
February 2010 - 24 U 72/09, juris no. 3).
[10] “Defendant did not have to raise the arbitration objection again before the appellate court,
because [the objection] had been granted by the Court of First Instance. In this Revision
proceeding, which concerns solely the question whether the arbitration agreement is valid,
Defendant has made sufficiently clear that it maintains its arbitration objection.”
2 Formal Validity of the Arbitration Agreement Under the 1958 New York Convention
[11] “The [1958 New York Convention] – which ranks as a German federal law in the German legal
system, pursuant to the approval law of the Bundestag (Art. 59(2) first sentence of the Constitution)
(Art. 1 of the Law on the Convention of 10 June 1958 on the Recognition and Enforcement of
Foreign Arbitral Awards, BGBl. II 1961, p. 121) – is applicable, because both Germany and the
Netherlands are Contracting States to the Convention.
[12] “If one of the parties raises the arbitration objection in proceedings before a state court of a
Contracting State, the court seized must take into account Art. II of the New York Convention, if in its
opinion the parties' arbitration agreement could lead to a foreign arbitral award within the meaning
of Art. I of the Convention (see BGH, 8 June 2010 - XI ZR 349/08, SchiedsVZ 2011, 46 no. 25 and
references therein). (2) If the place of the arbitration has not yet been determined, it suffices that a
foreign arbitral award is possible (see MünchKomm.ZPO/Adolphsen op. cit. Art. II Convention no.
5).
[13] “These requirements are met. The disputed arbitration clause in Art. 16 of the NVS Conditions
can lead to a Dutch arbitral award.
[14] “Pursuant to Art. II(1) of the New York Convention, each Contracting State shall recognize an
agreement in writing under which the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a defined legal relationship.
Pursuant to Art. II(2) of the New York Convention, the term ‘agreement in writing’ shall include an
arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.
[15] “These requirements are not met. There is no arbitration agreement signed by both parties; the
unilateral signing of the confirmation letter by Defendant with a mere reference to the NVS

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 Conditions does not suffice (see Staudinger/Hausmann, IntVertrVerfR, Neubearbeitung 2016, no.
479). Nor has there been an exchange of letters within the meaning of the second alternative of Art.
II(2) of the Convention. If an order confirmation contains the arbitration clause, or a reference therto,
for the first time, a reaction in writing of the other party is necessary (see Staudinger/Hausmann op.
cit. no. 480 et seq.).
[16] “These requirements are not met. The reference to the arbitration clause in the NVS Conditions
was contained for the first time in the confirmations sent by Defendant. The Policy Holder of
Claimant did not react thereto with respect to the disputed delivery (for the reference to an invoice
see BGH, 21 September 2005 - III ZB 18/05, SchiedsVZ 2005, 306 [juris no. 10]).” (3)
3 The More-Favorable-Right Principle of Art. VII(1) of the 1958 New York Convention
[17] “Even though the [formal requirements] of Art. II of the New York Convention are not met, the
arbitration agreement can be formally valid, under the more-favorable-right principle of Art. VII(1) of
the Convention, if it is valid under the domestic law or the treaties of the country in which it is
invoked (see BGH, SchiedsVZ 2005, 306 [juris no. 16]; SchiedsVZ 2011, 46 no. 29).
[18] “Pursuant to Art. VII(1) of the New York Convention, the provisions of the Convention – and
therefore also the provisions on the form of an arbitration agreement in Art. II – do not deprive an
interested party of the right to avail itself of an arbitral award under the domestic law or the treaties
of the country in which it is invoked. Thus, the New York Convention allows the application of
national law, insofar it is more favourable to the recognition and enforcement of foreign arbiral
awards (more-favorable-right principle; see BGH, 30 September 2010 - III ZB 69/09, BGHZ 187,
126 no. 6). (4)
[19] “The more-favorable right principle of Art. VII(1) of the New York Convention allows for the
application of more recognition-friendly national provisions for domestic arbitral awards to foreign
arbitral awards (see BGH, SchiedsVZ 2005, 306, 307 [juris no. 17]; BGHZ 187, 126 no. 6 et seq.,
10). This applies both to the proceedings for exequatur and a declaration of enforceability which Art.
VII(1) of the New York Convention, according to its text (‘arbitral award’), concerns, and to the
[arbitration] objection within the meaning of Art. II(3) of the Convention at issue here (see BGH,
SchiedsVZ 2011, 46 no. 29; BGH, 8 May 2014 III ZR 371/12, SchiedsVZ 2014, 151 no. 15 and 31;
(5) Staudinger/Hausmann op. cit. no. 489; Haas, SchiedsVZ 2011, 289, 295 et seq. and references
therein).
[20] “It can also be inferred from the more-favorable-right principle of Art. VII(1) of the Convention, in
the context of the [arbitration] objection, that an arbitration agreement is valid if it complies either
with the uniform law (Art. II(2) of the New York Convention), the national substantive law (Sect. 1031
ZPO), or the substantive law determined through the national conflict-of-law rules (see BGH,
SchiedsVZ 2005, 306, 307 [juris no. 18]; SchiedsVZ 2014, 151 no. 31; Wächter, SchiedsVZ 2018,
294, 298).”
a German domestic law
[21] “The formal conditions of Sect. 1031 ZPO –the national substantive law which is accordingly
applicable – are also not complied with.
[22] “Pursuant to Sect. 1031(1) ZPO, the arbitration agreement must be contained either in a
document signed by the parties or in an exchange of letters, telefaxes, telegrams or other means of
telecommunication which provide a record of the agreement. Pursuant to Sect. 1031(2) ZPO, the
form requirement of subsection 1 shall be deemed to have been complied with if the arbitration
agreement is contained in a document transmitted from one party to the other party or by a third
party to both parties and – if no objection was timely raised – the contents of such document are
considered to be part of the contract in accordance with common usage. Pursuant to Sect. 1031(3)
ZPO, the reference in a contract complying with the form requirements of subsection 1 or 2 to a
document containing an arbitration clause constitutes an arbitration agreement provided that the
reference is such as to make that clause part of the contract.”
i Formal requirements
[23] “The conditions of Sect. 1031(1) ZPO are not complied with. The arbitration agreement was not
contained in a document signed by the parties (Sect. 1031(1) first alternative ZPO), nor was it
contained in exchanged documents – not necessarily signed – or in other means of communication
(Sect. 1031(1) second alternative ZPO). There has been no exchange of letters. Only the
confirmations sent unilaterally by Defendant to the Policy Holder of Claimant contained a reference
to the NVS Conditions, which include the arbitration agreement.”
ii Incorporation by reference
[24] “The conditions of Sect. 1031(2) and (3) ZPO are also not complied with. It is true that
Defendant's confirmation is a commercial confirmation letter which meets the conditions of Sect.
1031(2) ZPO and which refers to a document containing an arbitration clause – here, the NSV

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© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Conditions – within the meaning of Sect. 1031(3) ZPO. However, the reference is not such as to
have made this clause part of the contract within the meaning of Sect. 1031(3) ZPO.
[25] “The appellate court correctly assumed that the question of the valid incorporation by reference
of the arbitration clause within the meaning of Sect. 1031(3) ZPO was not to be resolved according
to this provision, but according to substantive law. Where, as here, the arbitration clause is included
in general conditions of contract to which reference is made, the requirements that are necessary
for the incorporation of general conditions of contract in general must be met (see Schlosser in
Stein/Jonas op.cit. Sect. 1031 no. 13). To this aim it is determinative whether the NVS Conditions
with the arbitration agreement were validly incorporated into the contract between the parties in
accordance with German law, including the CISG. That is not the case.
[26] “Provided that it is validly incorporated into the contract, the arbitration agreement [at issue] is
part of a contract for the sale of goods between parties having their seat in different countries which
are both Contracting States of the CISG – Germany and the Netherlands. Thus, the CISG – which
has the status of a federal law within the German legal system, pursuant to the Bundestag Approval
Law (Art. 59(2) first sentence Constitution) of 5 July 1989, BGBl. II p. 586 (Art. 1 of the Law on the
United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, as well
as for the Amendment of the Law on the Convention on the Contract for the International Carriage of
Goods by Road (CMR) of 19 May 1956) – is in principle applicable pursuant to Art. 1(1)(a) CISG.
[27] “The question whether the exclusion of the CISG contained in the NSV Conditions is valid is not
relevant in this context. This choice of law by the parties may influence the status of the arbitration
agreement (see [at [48]] below et seq.), but is not to be taken into account when examining national
substantive law in the context of the more-favorable-right provision.
[28] “The question whether and to what extent the CISG applies to arbitration agreements, however,
is disputed.
[29] “The jurisprudence of the trial courts [Instanzgerichte] generally assumes the coming into
existence of arbitration agreements without discussing in depth Art. 14 to Art. 24 CISG on the
conclusion of contracts (see OLG Stuttgart, IHR 2016, 236 [juris no. 25 to 30]; United States District
Court, S.D. New York, 789 F. Supp. 1229, 1237, Filanto, SpA v. Chilewich Intern. Corp.; (6) further
numerous references in Schroeter in Schlechtriem/Schwenzer/Schroeter, CISG, 7th ed.,
Introduction to Arts. 14-24 no. 51; Koch in Festschrift Kritzer, 2008, p. 267, 274 to 276; Magnus,
ZEuP 2017, 140, 155).
[30] “According to the predominant doctrinal view, Art. 14 to Art. 24 CISG also apply to the
incorporation of an arbitration agreement into a sales contract governed by the CISG and therefore
to the coming into existence of a material [arbitration] agreement between the contractual parties.
The formal requirements in Art. II of the New York Convention and Sect. 1031 ZPO remain
unaffected (see jurisPK.BGB/Hlawon, 9th ed. ed., CISG Art. 14 no. 17; Schlechtriem/Schroeter,
Internationales UN-Kaufrecht, 6th ed. no. 233; Schwenzer/Tebel in Festschrift Magnus, 2014, p.
319, 329; Magnus in Festschrift Kritzer, 2008, p. 303, 310; for an overview see also Koch in
Festschrift Kritzer, 2008, p. 267, 270 to 273; further Walker, 25 Journal of Law and Commerce
[2005-2006], p. 153, 163). The applicability of the [CISG] rules on the conclusion of contracts follows
from Art. 19(3) CISG, according to which a different term on the settlement of disputes in the reply to
an offer amounts to a material alteration of the terms of the offer and prevents the coming into
existence of the sales contract. Conversely, concurring party declarations allow such clause to
become an integral part of the contract. This is confirmed by Art. 81(1) second sentence CISG,
according to which avoidance of the contract does not affect any provision of the contract on the
settlement of disputes or any other provision of the contract governing the parties' rights and
obligations consequent upon the avoidance of the contract. This provision would be superfluous if
arbitration clauses were not already part of the contractual relationship under the CISG (see
Schroeter in Schlechtriem/Schwenzer/Schroeter op. cit. Introduction to Arts. 14-24 no. 50 and
references therein; BeckOK.BGB/Saenger, 53rd ed. [as of 1 August 2020], CISG Art. 4 no. 19;
Beck.OGK/Buchwitz, as of 1 August 2020, CISG Art. 14 no. 27; jurisPK.BGB/Hlawon op. cit. CISG
Art. 14 no. 10, 16; Piltz, Internationales Kaufrecht, 2nd ed., Sect. 2 no. 2-128;
Schlechtriem/Schroeter op. cit. no. 208; Schwenzer/Tebel in Festschrift Magnus, 2014, p. 319, 324
et seq.; Schwenzer/Jaeger, IWRZ 2016, 99, 103 et seq.; see also Kröll/Mistelis/Perales
Viscasillas/Djordjević, CISG, 2nd ed., Art. 4 no. 33; restricting, Staudinger/Magnus, BGB [2018],
Introduction CISG Art. 14 no. 8 and CISG Art. 14 no. 41 c).
[31] “The contrary opinion rejects the application of the CISG to arbitration agreements (and forum
agreements) in particular based on the argument of the legal independence of dispute resolution
clauses (see Münch-Komm.BGB/Huber, 8. ed., CISG Art. 4 no. 43; Kröll, 25 Journal of Law and
Commerce [2005-2006] 39, 42 to 44) and on the text of Art. 4 first sentence CISG, according to
which the CISG governs only the formation of the contract of sale and the rights and obligations of
the seller and the buyer arising therefrom (see Koch in Festschrift Kritzer, 2008, p. 267, 285).

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 [32] “This Chamber recently left expressly open the question whether Arts. 14 to 24 CISG are
applicable to the valid incorporation of an arbitration clause into a contract (see BGH, 11 May 2017
- I ZB 75/16, NJW 2017, 3723 no. 20). In any case, [the Court] decides when – as here – national
substantive law or conflict-of-law rules must be applied in accordance with the more-favorable-right
provision of Art. VII(1) of the New York Convention, because according to the prevailing view the
formal requirements of Art. II(2) of the Convention are not met (see on this point also Schroeter in
Schlechtriem/Schwenzer/Schroeter op. cit. Introduction to Arts. 14-24 no. 54). In such case, a
(partial) recourse to the provision of Art. II(2) of the Convention for the question of the valid
incorporation of the arbitration clause is not possible, because this would entail a mixing of different
regulatory systems (see MünchKomm. ZPO/Adolphsen op. cit. Art. VII of the Convention no. 4).
Hence, we do not need to decide here whether and to what extent, when applying Art. II(2) of the
New York Convention, its formal requirements result in certain minimum requirements for an
autonomous interpretation of the characteristic of the ‘agreement’ in the sense of a substantively
valid incorporation (see on this point Staudinger/Hausmann op. cit. no. 461, 482 to 484 and
references therein; see also Gildeggen, Internationale Schieds- and
Schiedsverfahrensvereinbarungen in general conditions of contract vor deutschen Gerichten,
1991, p. 60 et seq.).
[33] “While also in a contract falling under the CISG the formal validity of an arbitration agreement is
governed by the relevant specific provisions such as the New York Convention or Sect. 1031 ZPO,
and therefore also in the context of the more-favorable-right principle the formal freedom of Art. 11
first sentence CISG does not apply (see Schlechtriem/Schroeter op. cit. no. 233;
Schwenzer/Jaeger, IWRZ 2016, 99, 104; Schwenzer/Tebel in Festschrift Magnus, 2014, p. 319,
327 to 329), the provisions of the CISG can be applied to the question of the material agreement of
the parties. On the one hand, this [conclusion] is supported by Art. 19(3) and Art. 81(1) second
sentence 2 CISG (see Schlechtriem/Schroeter op. cit. no. 208; Schwenzer/Tebel in Festschrift
Magnus, 2014, p. 319, 325). On the other hand, the question of the meeting of the minds also
concerns the contract-law dimension in the sense of Art. 14 to Art. 24 CISG, including the
interpretation provision in Art. 8 CISG (see Schwenzer/Jaeger, IWRZ 2016, 99, 104 and 105). This
is not prevented by the independence of the arbitration agreement. The rule of Art. 81(1) second
sentence CISG clarifies that also the CISG fundamentally recognizes the principle of the autonomy
of the arbitration agreement. Furthemore, the independence of dispute settlement clauses does not
mean that the dispute settlement clause is necessarily governed by a different law than the main
contract (see Schroeter in Schlechtriem/Schwenzer/Schroeter op. cit. Introduction to Arts. 14-24 no.
53).
[34] “It does not stand in the way of the application of the CISG to the question of the formally valid
coming into existence of arbitration agreements the fact that the VIII Civil Chamber in its decision of
25 March 2015 (VIII ZR 125/14, NJW 2015, 2584 no. 56), when examining a forum agreement
under Art. 23 of the Regulation (EU) No. 44/2001 … in force until 9 January 2015, did not apply the
CISG to procedural agreements such as forum clauses, in any case in respect of the requirements
for their valid coming into existence, but rather subjected them in accordance to Art. 4 second
sentence CISG to the law of the forum state, which was determinative in this respect. The question
of the application of the CISG to arbitration agreements is not affected by this decision on forum
clauses under the old version of the Regulation. In addition, with respect to arbitration agreements –
other than forum agreements under Art. 23 of the old version of the Regulation – in cases such as
the present one, where national law can be applied under the more-favorable-right provision
because of the lack of compliance with the formal requiements of Art. II(2) of the New York
Convention, no autonomous law comes into play, which serves the purpose of creating an
internationally unified law (see Court of Justice of the European Union, 7 July 2016 - C-222/15,
EuZW 2016, 635 no. 29 and 31 – Hőszig/Alstom).
[35] “According to the provisions of the CISG, the NVS Conditions including the arbitration
agreement were not validly incorporated into the sales contract.
[36] “The incorporation of general conditions of contract into a contract governed by the CISG is
regulated by the relevant provisions on the conclusion of contracts (Art. 14, Art. 18 CISG). However,
the CISG does not contain specific rules for the incorporation of standard conditions into the
contract. It must therefore be determined through interpretation in accordance with Art. 8 CISG
whether the NVS Conditions containing the arbitration agreement were validly incorporated. This
may result from the negotiations between the parties, the practices established beween them, or
international usages (Art. 8(3) CISG). Moreover, it must be taken into account how a ‘reasonable
person of the same kind as the other party’ would have interpreted the offer (Art. 8(2) CISG; see
BGH, 31 Oktober 2001 - VIII ZR 60/01, BGHZ 149, 113, 116 et seq. [juris no. 13 et seq.]).
[37] “There is no basis for finding that the NVS Conditions were incorporated based on the
negotiations of the parties or the practices established between them. Insofar as Defendant argues
that in the international spice trade the use of an arbitration clause is common in the terms and

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 conditions of the sector, this is contradicted by the fact that Defendant itself referred in its
confirmation letters, in addition to the NVS Conditions, to its own Conditions of Sale and Delivery,
which do not contain an arbitration clause but a forum agreement.
[38] “If one considers how a ‘reasonable person of the same kind as the other party’ would have
interpreted the offer (Art. 8(2) CISG), then it is necessary that the text of the general conditions of
contract is sent or made otherwise available to the party opposing the declaration (see BGHZ 149,
113, 117 [juris no. 15] and references therein; jurisPK.BGB/Münch, 9th ed., Art. 8 CISG no. 50;
jurisPK.BGB/Hlawon op. cit. CISG Art. 14 no. 19 and 22; Magnus, ZEuP 2017, 140, 154 et seq.;
differently, OLG Hamburg, IHR 2014, 12, 14). That is not the case here. The NVS Conditions were
not sent or made otherwise available to the Policy Holder of Claimant.
[39] “The fact that under German law general conditions of contract that are referred to become part
of the contract in dealings between enterpreneurs also when the other party does not know them,
but has the possibility of reasonable knowledge – for instance by requesting them from the seller –
does not lead to a different conclusion. In national legal relationships, the clauses within a sector are
often similarly structured and usually known in the trading circles involved. To the extent that this is
not the case for an entrepreneurial contracting party, it can be expected in good faith from [such
party] that it obtains the body of clauses when it wishes to conclude the transaction as offered by the
drafter [of the general terms and conditions] through incorporation of its general terms and
conditions. However, these requirements do not apply to the same extent in international
commerce, so that according to the principle of good faith the other party cannot be expected to
have the same duty to enquire (see BGHZ, 149, 113, 118 [juris no. 16]).”
b German conflict-of-law rules
[40] “The rules on national conflict of laws applicable in the context of the more-favorable-right
principle do not lead to a different result.
[41] “The more arbitration-friendly national law, whose application is explicitly allowed by Art. VII(1)
of the New York Convention within the framework of the more-favorable-right principle, includes not
only the provisions of Sect. 1025 et seq. ZPO, but also the national conflict-of-law rules and thus the
(foreign) law applicable to arbitration agreements (see BGH, SchiedsVZ 2005, 306, 307 [juris no.
18]; SchiedsVZ 2014, 151 no. 31 and references therein).
[42] “The national conflict rule concerning form is Art. 11(2) EGBGB (see BGH, SchiedsVZ 2005,
306, 307 [juris no. 19]; SchiedsVZ 2014, 151 no. 31; Zöller/Geimer op. cit. Sect. 1031 no. 1;
Schwab/Walter op. cit. Chapter 44 no. 17; Schütze, SchiedsVZ 2014, 274, 275, and references
therein; differently, Staudinger/Hausmann op. cit. no. 499). Accordingly, a contract concluded
between persons who are in different states is formally valid if it meets the formal requirements of
the law applicable to the legal relationship which is its subject matter, or the law of one of these
states.
[43] “The law applicable to the arbitration agreement …, which pursuant to Art. 11(2) first case
EGBGB also governs its form, is determined in accordance with Art. V(1)(a) of the New York
Convention.
[44] “In its jurisprudence, the Federal Supreme Court has consistently examined the conclusion and
validity of an arbitration agreement where there is a conflict of laws in accordance with the rules of
German private international law, and accordingly reverted to the provisions of Art. 27 to Art. 37
EGBGB old version (see BGH, 28 November 1963 - VII ZR 112/62, BGHZ 40, 320 [juris no. 21]; 3
Mai 2011 - XI ZR 373/08, NJW-RR 2011, 1350 no. 38; 7 Juni 2016 - KZR 6/15, BGHZ 210, 292 no.
44; see also BGH, 21 September 2005 - III ZB 18/05, SchiedsVZ 2005, 306 [juris no. 18 f.]). With
the repeal of Art. 27 et seq. EGBGB old version with effect from 17 December 2009, however,
recourse to the national conflict-of-law rules in international contract law is excluded. There can be
no recourse to Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual
obligations (Rome I Regulation), which has been in force since 17 December 2009, because of its
Art. 1(1)(e), which explicitly excludes arbitration and forum agreements from the scope of
application of the Regulation (see Staudinger/Hausmann op. cit. no. 448; König, SchiedsVZ 2012,
129, 130 et seq.).
[45] “There can be no application by analogy of the provisions of the Rome I Regulation, because
there is no unintended legislative gap. Because of the express exclusion of arbitration agreements
from the scope of application of the Rome I Regulation, any legislative gap is at least not
unintended. Application by analogy would undermine the express exclusion of application (see
Staudinger/Hausmann op. cit. no. 448 and references therein; BeckOK.ZPO/Wilske/Markert op. cit.
Sect. 1061 no. 20; MünchKomm.ZPO/Adolphsen op. cit. Art. II of the New York Convention no. 29;
Voser/Schramm/Haugeneder in Torggler/Mohs/Schäfer/Wong, Handbuch Schiedsgerichtsbarkeit,
2. ed., no. 804; Hammer in Czernich/Geimer, Streitbeilegungsklauseln im internationalen
Vertragsrecht, p. 407; König, SchiedsVZ 2012, 129, 131 et seq.; differently, von Schlabrendorff in

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 Salger/Trittmann, Internationale Schiedsverfahren, Sect. 2 no. 24; Schütze, SchiedsVZ 2014, 274,
275).
[46] “Furthermore, there is no legislative gap. In the case of international arbitration agreements, the
law applicable to arbitration agreements is to be determined by application (by analogy) of Art. V(1)
(a) of the New York Convention. According to this provision, recognition or enforcement of an
arbitral award can be refused, if the arbitration agreement is invalid under the law to which the
parties have subjected it or, failing any indication thereon, under the law of the country where the
award was made. According to its wording, the provision of Art. V(1)(a) of the New York Convention
concerns only the conflict-of-law connecting factor for the arbitration agreement in the context of
proceedings for the recognition and enforcement of a foreign arbitral award. An application by
analogy in [arbitration] objection proceedings (Art. II(3) of the New York Convention) is however
necessary according to a teleological interpretation in consideration of the ‘principle of the inner
harmony of a decision’ [Prinzip des inneren Entscheidungseinklangs] (Epping, Die
Schiedsvereinbarung im internationalen privaten Rechtsverkehr nach der Reform des deutschen
Schiedsverfahrensrechts, 1999, p. 41), even if Art. II(3) of the New York Convention does not refer
to Art. V(1)(a) of the New York Convention. Otherwise an arbitration agreement could be held to be
valid in the objection proceeding according to the autonomous conflict-of-law rules of the forum and
lead to the lack of jurisdiction of the state court, but a later arbitral award could then be denied
recognition and enforcement under the law applicable pursuant to Art. V(1)(a) of the New York
Convention for invalidity of the arbitration agreement (see Staudinger/Hausmann op. cit. no. 439
and references therein; Hausmann in Reithmann/Martiny, Internationales Vertragsrecht, 8th ed. no.
8.23; Schlosser in Stein/Jonas op. cit. Annex to Sect. 1061 nos. 58 and 68). Moreover, the
application by analogy of Art. V(1)(a) of the New York Convention ensures not only a synchronization
of the [arbitration] objection proceeding and the proceeding for exequatur and a declaration of
enforceability, but also a synchronization of the objection proceeding and the arbitration proceeding
(see König, SchiedsVZ 2012, 129, 132).
[47] “Pursuant to Art. V(1)(a) of the New York Convention, the validity of the arbitration agreement is
governed primarily by the law chosen by the parties, and subsidiarily by the law of the country in
which the arbitral award is rendered or – where Art. V(1)(a) of the New York Convention is applied
by analogy in the [arbitration] objection proceeding – will be rendered. Accordingly, Dutch law
inclusive of the CISG is applicable to the arbitration agreement at issue.
[48] “The parties did not make an explicit choice of law for the arbitration agreement. Pursuant to
Art. 17 and Art. 18 of the NVS Conditions, Dutch law exclusive of the CISG shall apply to the main
contract. We do not need to decide whether this choice of law can be deemed to be a tacit choice
of law also for the arbitration agreement. The choice of law in Art. 17 and Art. 18 of the NVS
Conditions proves to be invalid.
[49] “The conditions for a valid incorporation of the NVS Conditions under the CISG are not
complied with (see [at [35]-[39]] above). The standards for the incorporation of general conditions of
contract into a contract which is in principle governed by the CISG also apply to general conditions
of contract which provide for the application or exclusion of the CISG (on the possibility to exclude
the application of the CISG – also in general conditions of contract – see BGH, 18 Oktober 2017 -
VIII ZR 86/16, BGHZ 216, 193 no. 18); it must be decided autonomously whether a general-
conditions-of-contract clause has been validly incorporated into the contract (see OGH, IHR 2018,
19, 20 and references therein; jurisPK.BGB/Münch op. cit. Art. 8 CISG no. 50; jurisPK.BGB/Hlawon
op. cit. Art. 14 CISG nos. 19 and 22; BeckOK.BGB/Saenger op. cit. CISG Art. 6 no. 2; Piltz,
Internationales Wirtschaftsrecht, Sect. 7 no. 45; Magnus, ZEuP 2017, 140, 154 et seq.; differently,
OLG Hamburg, IHR 2014, 12, 14).
[50] “In the absence of a choice of law by the parties, pursuant to Art. V(1)(a) of the New York
Convention the objective connecting factor for the arbitration agreement in the proceedings before
the state court deciding on the [arbitration] objection is the place where the arbitral award is to be
made – here, Amsterdam. Contrary to the opinion of the request, the place of arbitration is not
unknown. According to the concurrent submissions of the parties in the lower instances, it appears
from the arbitration clause in Art. 16 of the NVS Conditions that the place of arbitration is
Amsterdam. The arbitration agreement and its form are therefore governed by Dutch law including
the CISG.
[51] “Hence, the question of what law applies to the arbitration agreement if the place of arbitration
is not yet known at the time of the decision on the validity of the arbitration agreement, does not
need to be answered (for a recourse to the lex fori see König, SchiedsVZ 2012, 129, 133; for a
recourse to the conflict-of-law rules of the lex fori see MünchKomm.ZPO/Adolphsen op. cit. Art. II of
the New York Convention no. 29; Epping op. cit. p. 41; see also Art. VI(2)(c) of the European
Convention on International Commercial Arbitration of 21 April 1961, BGBl. II 1964 p. 425).
[52] “The arbitration agreement is invalid according to Dutch law, inclusive the CISG, which applies

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 pursuant to Art. 11(2) first case EGBGB together with Art. V(1)(a) of the New York Convention.
[53] “The formal freedom of Art. 11 CISG does not apply to the arbitration agreement. The CISG is
not applicable to the question of the formal validity of arbitration agreements (see above [at 32]] et
seq.).
[54] “In conclusion it can remain open whether the arbitration agreement is valid based on more
liberal formal requirements of Dutch law. The arbitration agreement was in any case not validly
incorporated into the contract.
[55] “However, the fact that the general conditions of contract have not become part of the contract
under the CISG, which applies to the main contract, does not mean that there is no valid
incorporation. The validity of the arbitration clause contained in the general conditions of contract
does not depend on the fact that the general-conditions-of-contract clauses as such have become
an integral part of the contract under the law applicable to the main contract. This would make the
fate of the arbitration agreement dependent on the fate of a part of the main contract, in
contradiction with the principle of autonomy in arbitration law – also under conflict of laws. The
‘incorporation’ of arbitration clauses in general conditions of contract is about the formation and
validity of the arbitration agreement, not the substantive scope of the main contract. The question of
whether the substantive part of general-conditions-of-contract clauses has been incorporated into
the contract, which is to be answered according to the law applicabe to main contract, must
therefore be separated from the question of whether the arbitration agreement contained in the
general conditions of contract has been validly concluded (Epping, Die Schiedsvereinbarung im
internationalen privaten Rechtsverkehr nach der Reform des deutschen
Schiedsverfahrensrechts, 1999, p. 136 et seq.; see also Staudinger/Hausmann, IntVertrVerfR,
Neubearbeitung 2016 no. 461).
[56] “According to the CISG, which is the law applicable to the arbitration agreement and which is
also applicable to arbitration agreements with respect to the question of the substantive agreement
(see above [at [32]-[34]]), the arbitration agreement – same as if the national substantive law were
applied (Sect. 1031(2) and 3 ZPO together with Art. 8 CISG; see above [at [35]-[39]]) – was not
validly incorporated into the contract, because the NVS Conditions containing the arbitration
agreement were not sent or made otherwise accessible to the Policy Holder of Claimant.
[57] “The alternative connecting factors of Art. 11(2) second case EGBGB do not lead to a different
result, because accordingly, again, the application of German or Dutch law is in both cases
inclusive of the CISG. If German law is applied, the arbitration agreement, as seen, was not
concluded in a formally valid manner. If Dutch law is applied, there is at least no valid agreement of
the parties, because the arbitration clause contained in the NVS Conditions was not validly
incorporated under the CISG.”

III Conclusion
[58] “The request of Respondent must therefore be denied, with the consequences as to costs
under Sect. 97(1) ZPO.”
References
1)
This decision was translated from the German original by the ICCA staff.
2)
Reported in Yearbook XXXVII (2012) pp. 216-219 (Germany no. 140).
3)
Reported in Yearbook XXXI (2006) pp. 679-684 (Germany no. 89)
4)
Reported in Yearbook XXXVI (2011) pp. 282-283 (Germany no. 139).
5)
Reported in Yearbook XXXIX (2014) pp. 401-405 (Germany no. 152).
6)
Reported in Yearbook XVIII (1993) pp. 530-549 (US no. 134).

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