In a ruling of 1 October 2014, the Higher Regional
Court Munich had to deal with an arbitration clause containing certain
conditions for the appointment of the arbitrator which could not be met
when the dispute arose. The court decided that nevertheless the
arbitration proceedings were admissible.
The applicant was a former limited partner of the respondent, a
limited partnership. The dispute was about a compensation which the
applicant claimed from the respondent. Pursuant to the arbitration
clause in the partnership agreement, disputes between the partnership
and its members or between members were to be settled in arbitration
proceedings with a “colleague” as sole arbitrator who was to be
appointed jointly by the parties. If the parties were unable to agree on
a “colleague”, the arbitrator was to be appointed by a certain
association named in the arbitration clause. After the dispute had
arisen, the parties were unable to agree on an arbitrator and also the
association refused to appoint an arbitrator. The applicant requested
the court to declare that arbitration proceedings were inadmissible
because the arbitration clause was ineffective. He argued that
arbitration proceedings could not be executed as the clause was
unsuitable to lead to the appointment of an arbitrator.
The Higher Regional Court did not share the applicant’s view. The
court considered the arbitration agreement to be valid and the
arbitration to be admissible. It held that agreements with respect to
the procedure of the arbitration – including the nomination and
appointment of arbitrators – are legally independent from the
arbitration agreement as such by which the parties grant an arbitrator
or an arbitral tribunal the competence to finally settle a dispute. If
those procedural agreements are invalid or impracticable, this does not
cause the entire arbitration agreement to be invalid unless otherwise
agreed by the parties. As the partnership agreement provided for
arbitration without recourse to the ordinary courts and as there was no
reason why this agreement should be invalid, the court declined to
declare the arbitration proceedings to be inadmissible. It held that
German statutory arbitration law applies insofar as additional
provisions, for example on the qualification of the arbitrators or the
appointment procedure, are invalid or impracticable.
The court’s ruling is in line with prior decisions of the German Federal Supreme Court (Bundesgerichtshof – BGH)
and of other courts of lower instance as well as with the opinion of
most German scholars. For example, in 2007, the BGH decided that
agreements on the nomination of arbitrators in standard terms which
discriminate the other party do not lead to the invalidity of the
arbitration agreement as such. Rather, the invalid standard clause is
substituted by the respective statutory provision (judgment of 1 March
2007, III ZR 164/06). In 2011, the BGH had to decide whether an
arbitration agreement was invalid because the parties had referred the
dispute to a non-existing arbitration institution. Also in this case,
the BGH held that the arbitration agreement was valid and that the
competent tribunal had to be determined by way of supplementary contract
interpretation (ruling of 14 July 2011, III ZB 70/10). According to the
Higher Regional Court Koblenz (judgment of 6 March 2008, 6 U 610/07)
and the Higher Regional Court Berlin (ruling of 28 April 2011,
23 U 33/11), the same principles apply if articles of association
provide for dispute settlement by arbitration and refer to a
supplementary agreement with detailed procedural provisions which later
on is not concluded.
In view of the above, if parties to a contract want to make sure that
a dispute is only settled by a certain arbitrator or in accordance with
specific appointment procedures and that it should be referred to a
court if this certain arbitrator is not available or if the appointment
procedures cannot be met, the dispute resolution clause should contain
explicit provisions.
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