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BORRIS ■ HENNECKE ■ KNEISEL Rechtsanwälte

3rd DIS Baltic Arbitration Days 2014 Riga, 27 June 2014. Set-off and other substantive law objections as defence against the enforcement of an arbitral award. Dr. Christian Borris, LL.M. BORRIS ■ HENNECKE ■ KNEISEL Rechtsanwälte. The issue.

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BORRIS ■ HENNECKE ■ KNEISEL Rechtsanwälte

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  1. 3rd DIS Baltic Arbitration Days 2014 Riga, 27 June 2014 Set-off and other substantive law objections as defenceagainst the enforcement of an arbitral award Dr. Christian Borris, LL.M BORRIS ■ HENNECKE ■ KNEISEL Rechtsanwälte

  2. The issue • Set-off as a defence against enforcement of an arbitral award • Other substantive objections as defencesagainst enforcement of an arbitral award - E.g.: Award obtained by fraud • Procedural alternatives BORRIS ■ HENNECKE ■KNEISEL Rechtsanwälte

  3. Position of the German Federal Court of Justice (BGH) • Set-off recognized as a defence against enforcement of an arbitral award • Reasoning: procedural efficiency • Jurisdiction of enforcement courts vs. jurisdiction of general courts of the first instance Exceptions: • Set-off claim is subject to an arbitration agreement • Set-off claim could have been but was not raised during the arbitral proceedings - BORRIS ■ HENNECKE ■KNEISEL Rechtsanwälte

  4. Legal situation in other countries • USA: set-off not recognized as a defence (because it does not fall within any of the NY Convention defences) • Canada: set-off not recognised as a defence(because it does not fall within any of the defences according to the Model Law BORRIS ■ HENNECKE ■KNEISEL Rechtsanwälte

  5. Critique • Full right to be heard vs procedural efficiency • Loss of one instance • Enforcement proceedings not suited to deal with complex factual issues • Breach of the UN Convention: not one of the grounds for denying enforcement pursuant to Art. V? BORRIS ■ HENNECKE ■KNEISEL Rechtsanwälte

  6. BORRIS ■HENNECKE■KNEISEL Rechtsanwälte Im Zollhafen 6 50678 Cologne Germany T +491 716 13 000 F +49 221 716 13 009 mail@borris-legal.com

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