## Facts

- A Danish seller and a German buyer entered a cross-border sales contract with an arbitration clause providing for ICC arbitration seated in Germany; the contract did not specify the language of arbitration.
- A dispute was submitted to ICC arbitration before a sole arbitrator.
- Over the buyer’s objection, the arbitrator designated English as the language of the proceedings.
- The buyer participated in the arbitration and submitted at least one memorandum in English (or in English translation).
- The arbitrator issued an award in the seller’s favor granting monetary relief and rejecting the buyer’s defenses.
- The seller sought recognition and enforcement of the award in Germany; the buyer opposed enforcement, asserting denial of the right to be heard due to the English-language procedure and arguing enforcement would violate German ordre public.

## Issues

1. Whether conducting the arbitration in English, despite the buyer’s objection, violated the buyer’s right to be heard or due process so as to bar enforcement.
2. Whether enforcement of the award would contravene German public policy (ordre public) based on the language choice.
3. Whether the buyer met its burden to show concrete impairment or prejudice caused by the language of the proceedings.

## Decision

- The court rejected the buyer’s objections and granted recognition and enforcement of the ICC award.
- The court held that selecting English as the arbitration language, where the contract was silent and the buyer participated, did not by itself violate due process.
- The court found no ordre public violation because the buyer did not substantiate any concrete inability to understand the proceedings or any specific misunderstanding of its submissions by the arbitrator.

## Legal Principles

- Where an arbitration agreement does not specify the procedural language, the arbitral tribunal may determine the language under the applicable arbitration rules, subject to basic procedural fairness.
- A due-process challenge based on language requires a specific showing that the language choice actually impeded a party’s ability to present its case or otherwise caused material prejudice.
- Public-policy review at the enforcement stage is narrow and is limited to violations of fundamental principles of justice; routine procedural choices in international arbitration, including use of English, are not contrary to ordre public absent demonstrated unfairness.
- The party resisting enforcement bears the burden to prove both the alleged procedural defect and its material impact.

## Conclusion

The German appellate court enforced the ICC award, holding that English-language proceedings chosen by the arbitrator did not deny the buyer a fair opportunity to be heard and did not offend German ordre public because the buyer participated and failed to prove concrete prejudice.


Seller (Den.) v. Buyer (Ger.), 21 Y.B. Com. Arb. 535 (Oberlandesgericht 1996)