Section 1061(1) of the German Code of Civil Procedure (Zivilprozessordnung) (ZPO) reads as follows:

The applicant, as assignee, requested enforcement of an arbitral award rendered in Poland against "Franz W" from the Higher Regional Court of Munich. The dispute concerned a horse purchase agreement.

The respondent argued that it was not clear from the arbitral proceedings whether the arbitral award was directed against Franz W junior or Franz W senior, as both men have the same address and the arbitral award did not specify "junior" or "senior". Therefore, the arbitral award had been rendered against a person who lacked capacity to be made a respondent (fehlende Passivlegitimation).

The original claimant had business relations with both Franz W junior and senior. The respondent claimed that the contract in question had been concluded with Franz W junior, but that the claimant in the arbitral proceedings had alleged the contract was with Franz W senior. The question had not been fully clarified in the arbitral proceedings.

In the enforcement proceedings, the applicant provided documentation showing that the identity number written down on the contract corresponded to the identity number of Franz W junior. Therefore, the applicant argued that Franz W junior was party to the arbitration proceedings and the correct respondent in the enforcement proceedings.

The Higher Regional Court of Munich declared the award enforceable. According to the court, if the respondent is ambiguously identified in a foreign arbitral award, his identity may be determined in enforcement proceedings under narrow circumstances.

The court held that, under the circumstances of this case, it was persuaded that the respondent in the arbitral proceedings was Franz W junior. The court found that both parties had submitted in the arbitral proceedings and in the enforcement proceedings that it was the person who had signed the contract who was the true respondent. The identity papers and the contract confirmed that this was Franz W junior.

Insofar as the arbitral tribunal had failed to clarify contradictions in the parties' submissions regarding which Franz W was meant, the court found that it was not in a position to deal with such ambiguities because this would result in a revision of the merits (révision au fond).

This decision once again confirms the pro-arbitration stance of German courts and shows the effort made to ensure enforcement of foreign arbitral awards. This includes the determination of the identity of the respondent where the award is ambiguous in this regard.