SOLARWORLD INDUSTRIES SACHSEN GMBH WILL APPEAL AGAINST JUDGMENT AND SEES NO ENFORCEMENT POSSIBILITY IN GERMANY
In the litigation between silicon supplier Hemlock Semiconductor Corp. and SolarWorld Industries Sachsen GmbH, a subsidiary of SolarWorld AG, a single judge granted Hemlock’s claim for damages amounting to USD 585 million plus interests of USD 208 million in the first instance on July 26, 2016.
SolarWorld Industries Sachsen GmbH will appeal against this judgment of the first instance at the Intermediate Court of Appeals in the United States. SolarWorld AG expects a duration of proceedings in the second instance of about one year.
Inspite of this judgment in the first instance, SolarWorld AG continues to assume that Hemlock will not be able to enforce any claims in Germany. There are anti-trust concerns under European law regarding the effectiveness of the underlying supply contracts. If a potential final ruling by a U.S. court was to be enforced in Germany, Hemlock would have to initiate a recognition process at German courts according to Sec. 722 (1) of the German code of civil procedure. These proceedings would require the existence of a final – i.e. non-appealable – judgment from the United States. Moreover, in such a process, the compliance with fundamental principles of German law would have to be considered in reaching a verdict. According to German law, European trust law is a fundamental principle of the legal system. Furthermore, the U.S. single judge explicitly said that the court did not consider proof of illegality under EU anti-trust but also that this argument would receive its day in court later on. Thus, SolarWorld AG is convinced that such a procedure of recognition and enforcement will fail to be concluded successfully in Germany. The risk assessment of SolarWorld AG has thus not changed.