German Arbitration Digest (GAD)

Highest Regional Court of Bavaria confirms high hurdles for the violation of the right to be heard On 1 October 2024, the Highest Regional Court of Bavaria (BayObLG) declared two arbitral awards of the Danish Institute of Arbitration enforceable. The BayObLG rejected the objection of a violation of the right to be heard in a case where the respondent did not substantiate its inability to participate adequately in the arbitration hearing in consequence of prolonged illness. In addition, the court held that the arbitration rules’ lack of regulations on a party’s right to be assigned a lawyer in case of poverty does not violate its right to be heard. A summary of this decision, prepared by Dr. Erika Eder (EGO HUMRICH WYEN), is available under: https://lnkd.in/ehFBNFfJ If you are interested in writing a summary for the #GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

Arbitral award for information disclosure does not violate public policy because contractual duty to inform outweighs privilege against self-incrimination The Higher Regional Court of Stuttgart upheld a domestic arbitral award for information disclosure. The court rejected the public policy defence of invoking the privilege against self-incrimination since the respondent had contractually agreed on a duty to inform. A summary of this decision, prepared by Dr. Alexander Urhahn (SZA Schilling, Zutt & Anschütz), is available under: https://lnkd.in/egTKt-rY If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

Higher Regional Court of Frankfurt sheds light on the demarcation of jurisdiction between state courts and arbitral tribunals, upholding the German courts' strict approach to waiving a form requirement On 5 March 2024, the Higher Regional Court of Frankfurt (OLG Frankfurt) declared arbitration proceedings between the parties inadmissible for lack of a valid arbitration agreement. The court held that a jurisdiction clause generally confers jurisdiction on state courts even if it does not expressly state this but merely designates an (exclusive) place of jurisdiction. The OLG Frankfurt further emphasised that in order for a formal requirement to be waived by implied agreement, the parties' intent to override the formal requirement must be clearly discernible. A summary of this decision, prepared by Quirin Thomas (WACH UND MECKES), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

In dubio pro arbitration: Highest Regional Court of Bavaria clarifies general relationship between expert determination clauses and arbitration clauses in favour of admissibility of arbitration In its decision of 12 December 2023, the Highest Regional Court of Bavaria (BayObLG) addressed the conflict between an expert determination clause and an arbitration clause in a company's articles of association. The court determined that an expert determination clause generally does not preclude the jurisdiction of an arbitral tribunal. At most, the expert determination clause renders the arbitration claim unfounded (at present) until the expert determination is obtained. A summary of this decision, prepared by Rebecca Schüssler and Dr. Paul Bäder (PwC Deutschland), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

With reference to the "Achmea Decision" of the European Court of Justice: No declaration of enforceability for cost decisions in arbitral awards based on arbitration agreements that are invalid under EU law The Highest Regional Court of Bavaria (BayObLG) dismissed an application for a declaration of enforceability of the cost decision of a foreign arbitral award and held that the cost decision was not to be recognised in Germany by order dated 13 September 2024. The lack of a valid arbitration agreement prevents the recognition and enforcement of the cost decision of the arbitral award. Under EU law, an arbitration agreement is invalid if (e.g. on the basis of an intra-EU-BIT) an arbitral tribunal is given the power to decide on the application and interpretation of EU law, as the arbitral tribunal is not entitled to request a preliminary ruling from the European Court of Justice (ECJ). A summary of this decision, prepared by Nils Mutschall (Jones Day), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

The Higher Regional Court of Berlin (KG) confirms inadmissibility of intra-EU arbitration proceedings under the Energy Charter Treaty and the broad scope of application of Section 1032(2) German Code of Civil Procedure(ZPO) On 6 November 2023, the Higher Regional Court of Berlin (KG) declared an ICSID arbitration initiated by several German and Spanish investors against Spain within the context of the Energy Charter Treaty inadmissible. In reliance on the European Court of Justice's (ECJ) decisions in Achmea and Komstroy, the court found that the arbitration was inadmissible because there was no valid arbitration agreement, as the arbitration clause contained in the Energy Charter Treaty cannot be applied in an intra-EU context. The court held that the applicant could rely on Section 1032(2) ZPO to seek a declaration of inadmissibility (even though both the applicant and several of the respondents were not domiciled in Germany) because assets in Germany could serve as targets for the enforcement of a potential (cost) award. In deviation from its previous case law – and in line with the case law of the Federal Court of Justice (BGH) – the court found that a declaration under Section 1032(2) ZPO can also be sought with respect to an ICSID arbitration, if it concerns an intra-EU investment arbitration. A summary of this decision, prepared by Laura Riedner (Freshfields), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

German Federal Court of Justice bolsters the principle of "révision au fond", confirming that the allegedly wrongful consideration of evidence does not preclude the recognition of foreign arbitral awards On 21 December 2023, the German Federal Court of Justice (BGH) overruled a decision of the Higher Regional Court of Cologne (OLG Cologne) that had rejected an application for declaration of enforceability of a foreign arbitral award. The OLG Cologne had held that the respondent's right to be heard was violated because the arbitral tribunal wrongfully relied on evidence adduced by the applicant without taking into account the respondent's submission and without demonstrating the necessary expertise. The BGH, however, emphasized that objections must be raised promptly and clearly in writing during the arbitration and further stressed that the principle of "révision au fond" also applies to the taking of evidence, holding that the domestic court is prevented from reviewing the arbitral tribunal's consideration of evidence. A summary of this decision, prepared by Felix Mayer (Freshfields), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

No German anti-anti-suit injunction to protect foreign arbitration proceedings or assets abroad On 17 June 2024, the Higher Regional Court of Düsseldorf (OLG Düsseldorf) ruled that a German company’s tort rights, especially its right to access to justice, are not infringed by an anti-suit injunction of a Russian court. Apart from that, German courts could not issue an anti-anti-suit injunction to protect foreign arbitral proceedings or assets abroad due to the principles of territoriality and state sovereignty. The decision is convincing. The protection of arbitral proceedings is subject to the state of the arbitral proceedings. Assets are to be protected by the state of their location. The summary of this decision, prepared by Dr. Malte Weitner (OPPENLÄNDER Rechtsanwälte), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

"Signature could not be obtained" – but arbitral award is valid German law requires all arbitrators to sign the award. The BGH now ruled on exceptions and held: A co-arbitrator’s signature can be replaced by stating the obvious. It is not required to explain why the co-arbitrator did not sign. The majority can simply state that his or her signature “could not be obtained”. The summary of this decision, prepared by Sebastian Gratz (Dentons), is available under: https://lnkd.in/e7gxaqd9. If you are interested in writing a summary for the GAD project, please email dis40@disarb.org. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40

Higher Regional Court of Cologne recognises and declares enforceable Swiss arbitral award based on arbitration agreement concluded under apparent authority By decision of 2 February 2024 (19 Sch 21/23), the Higher Regional Court of Cologne recognised and declared enforceable a Swiss arbitral award based on an arbitration agreement concluded under apparent authority, rejecting a number of objections raised by the respondent. The decision confirms the German courts' willingness to conduct efficient recognition and enforcement proceedings and defer to party agreements to arbitrate. A summary of this decision, prepared by Justin Friedrich Krahé (SZA Schilling, Zutt & Anschütz), is available at: https://lnkd.in/e8th2bbp. German Arbitration Digest (GAD) by the Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) German Arbitration Institute and DIS40