THE VIEW FROM EUROPE WHAT’S NEW IN EUROPEAN ARBITRATION? Stephan Wilske, Isabelle Michou, Todd J. Fox ∗
RECENT DECISIONS BY NATIONAL COURTS
Germany. In a decision dated May 8, 2014 (BGH, Docket Number III ZR 371/12) and only recently published, the German Federal Court of Justice discussed whether a non-signatory to an arbitration agreement can be bound to it, and what law applies to this question. In this regard it also considered whether the so-called “group of companies” doctrine, which is not recognized in Germany but which may be applicable under foreign law, violates German public policy.
The plaintiff is a company based in Denmark that produces casings for electrical equipment. The company’s managing director and sole shareholder is the owner of a patent to a three-dimensional frame design for electrical equipment casings. The defendant is an Indian company that produces casings for electrical equipment. In 1999 a company based in Mauritius (Holdings Ltd) represented by the patent owner entered into a license agreement with a company based in India (Private Ltd), according to which the latter acquired the right to use the patented design (“License Agreement”). The License Agreement, which was subject to Indian law, contained an arbitration clause stipulating that disputes between the parties arising out of or in connection with the agreement would be resolved by ICC arbitration in New Delhi.
Following the Hannover Trade Fair in 2010 the plaintiff initiated German court proceedings against the defendant alleging violation of the patent.