A couple of comments in the LinkedIn International Arbitration and Arbitration Experts groups discussed my post on the Russian Arbitrazh court’s judgment before the Munich Court of Appeals (Oberlandesgericht) – raising, amongst other things, the question what the situation would have been if an application had been made for recognition as a foreign judgment, rather than as an arbitral award, so I thought I briefly address the issue:
Had the Russian party approached the German courts for recognition of a Russian state court judgment (as arguably it should have), then the application should have been made under Sec. 328 German Code of Civil Procedure (ZPO) to the District Court (Landgericht), as there is no treaty governing recognition and enforcement between Germany and Russia. In that procedure, the Russian party would need to show that there is reciprocity (Sec. 328 para.1 no.5), i.e. that in the same circumstances a German judgment would be recognized and enforced in Russia. According to the one of leading ZPO commentaries that I consulted today, that is not the case. Hence, the application to the Munich District Court would have been dismissed.
It may be fair to assume that counsel for the Russian party was aware of this problem, and that an application under the New York Convention was perceived as the only, albeit remote, chance of securing recognition in Germany.