Chronologiczny zapis wydarzeń od zawarcia umów do dnia dzisiejszego, oparty na dokumentach źródłowych.
During a telephone call between the Vice President of Polish Coffee Corporation and Ryszard Lesinski, board member of JJ Darboven Poland sp. z o.o. (Rumia, Poland) — a wholly owned subsidiary of JJ Darboven Hamburg — three raw coffee supply contracts are agreed under the European Contract for Spot Coffee (ECC), with Hamburg arbitration and German law governing:
Polish Coffee Corporation issues written contract confirmations on April 13, 1994. JJ Darboven Poland neither countersigns nor objects — constituting legal acceptance under international trade law and the German Commercial Code (HGB §346).
Global coffee prices rise sharply. JJ Darboven Poland issues invoices for the full 100t quantities before arranging delivery, then claims Polish Coffee Corporation has not paid on time. In fact, Polish Coffee Corporation had already prepaid for the first 50t tranche of Vietnam Robusta grade 1 between April 30 and May 6, 1994. The arbitral tribunal would later find that Polish Coffee was legally entitled under the contract to withhold further prepayment until first delivery was made — and that JJ Darboven Poland's attempt to withdraw from both contracts on May 16, 1994 was therefore unlawful.
Unable to reach JJ Darboven Poland by telephone, Polish Coffee Corporation appeals directly to the parent company, JJ Darboven Hamburg, including a personal visit from members of its board. JJ Darboven Hamburg receives the delegation on June 7, 1994, but responds by fax on June 15, 1994 stating it must remain "strictly neutral" and cannot intervene with its subsidiary. Polish Coffee Corporation had given JJ Darboven Poland a final deadline of May 25, 1994 at 17:00, after which it declared Darboven in default and calculated damages of US$ 83,500 based on the London terminal exchange closing price differential.
Polish Coffee Corporation files for arbitration on June 20, 1994. The claim is received at the Verbandsgeschäftsstelle on July 4, 1994. The claim seeks US$ 134,750 in damages plus costs. JJ Darboven Poland contests jurisdiction, arguing only Polish courts under Polish law should apply — but the tribunal, citing Article 18(a) of the European Contract for Spot Coffee, rejects this argument.
Full oral hearing held before the three-member tribunal: Chairman Klaus Zierau (Werner Petzold, Hamburg), Ludwig Sprengel (EUROCA GmbH, Hamburg), and Jörn-Hinrich Christen (Heinrich Christen GmbH, Hamburg). Both parties present arguments. JJ Darboven Poland continues to deny liability. The tribunal finds it has full jurisdiction and that the contracts are valid and binding.
The tribunal issues its ruling from Hamburg. Key findings:
The award is signed by all three arbitrators. JJ Darboven Poland does not challenge or appeal the ruling.
JJ Darboven Poland makes no payment. Polish Coffee Corporation initiates proceedings before the Gdansk District Court (case IX GCO 107/98) seeking recognition and enforcement of the German arbitration award in Poland.
The Gdansk District Court, Commercial Division IX (presiding judge M. Idzikiewicz-Ozolin) dismisses Polish Coffee Corporation's application, ruling that the Deutschen Kaffee-Verbandes arbitration tribunal lacked jurisdiction to issue the award, and therefore the award cannot be enforced in Poland. JJ Darboven Poland is awarded 1,200 zloty in court costs. The ruling becomes final on August 3, 1999. Polish Coffee Corporation does not appeal.
Jörn-Hinrich Christen — one of the three arbitrators who ruled against JJ Darboven Poland in 1994 — writes to the ECF Secretary General in his capacity as a Deutscher Kaffee-Verbandes board member, proposing the defaulting firms list be made publicly accessible on the internet. He notes there was "one strong objection" from within the board: the representative of JJ Darboven in Hamburg, because their Polish affiliate is on the list. The proposal does not proceed in the manner Christen suggested.
The Gdynia District Court issues a Hague Convention Certificate confirming that enforcement documents were formally served on Andrzej Sulima, independent proxy (prokurent samoistny) of JJ Darboven Poland sp. z o.o., on July 31, 2001. The certificate is stamped by the Hamburg Amtsgericht on August 21, 2001. This definitively establishes that JJ Darboven Poland cannot claim lack of notice.
The 11th Civil Senate of the Hanseatisches Oberlandesgericht Hamburg — presiding judge Dr. Büchel, judges Thiessen and Lübbe — issues its ruling in case 11 Sch 6/01 following oral proceedings on December 20, 2002. The court:
JJ Darboven Poland does not contest the substance of the ruling. The court's jurisdiction over enforcement of the German arbitration award is confirmed. This ruling is subsequently confirmed again by the same court in a letter dated June 17, 2009 (case reference 11 Sch 6/01).
Following the Hamburg OLG ruling, Polish Coffee Corporation's lawyers (Mielke, Streck & Albrecht, Hamburg) obtain a Pfändungs- und Überweisungsbeschluss (garnishment and attachment order, court reference 903 aM 701/03, dated July 10, 2003) and attempt to garnish JJ Darboven Hamburg's assets to satisfy the debt owed by JJ Darboven Poland. JJ Darboven GmbH & Co. KG (Hamburg) responds in writing on August 13, 2003, signed by Udo Bensing: it denies any financial claims by JJ Darboven Poland against it, states no claims can be recognized, and notes no other creditors have made claims either. The parent company thus actively shields its subsidiary from enforcement, while the subsidiary continues to hold an unpaid legal judgment against it.
Walter Zwald, honorary member of the Swiss Coffee Federation and a highly respected figure in international coffee trading and consulting (Walter Zwald Coffee Buying & Consulting, Meggen, Switzerland), independently reviews the case and steps in to support Polish Coffee Corporation. He contacts Darboven's business partners and industry connections, including by letter dated July 23, 2008 to Swiss industry figures. This triggers aggressive legal responses: lawyers for Hochstrasser AG Littau (a Swiss company connected to JJ Darboven International GmbH) send a threatening 6-page letter dated September 15, 2008, and Emmi Schweiz AG (CEO Urs Riedener) responds on September 3, 2008, declining involvement. The Hanseatisches Oberlandesgericht confirms in June 2009 that the 2003 ruling remains fully in force. The aggressive legal responses to Mr. Zwald's involvement further demonstrate the lengths to which JJ Darboven's network will go to prevent public accountability.
Despite two separate enforceable legal instruments — the December 6, 1994 DKV arbitration award and the January 24, 2003 Hamburg OLG enforcement order — and the European Coffee Federation blacklisting, JJ Darboven Poland sp. z o.o. (owned and managed by JJ Darboven Hamburg) has never paid the principal of US$ 80,100, the arbitration costs of DM 5,393.91, or any portion thereof. No legal challenge to the substance of the 1994 ruling has ever been filed by either JJ Darboven entity. The full amount, plus over thirty years of accumulated interest, remains outstanding.