Hamburg friendly arbitrage

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The Hamburg amicable arbitrage is an arbitration procedure that is not administered by a supporting organization (so-called "ad hoc arbitration"). It is based on a commercial practice , the rules of which are laid down in Section 20 of the “Platzusancen für den Hamburgischen Warenhandel” (PlU) published by the Hamburg Chamber of Commerce .

§ 20 of the space for the Hamburg goods trade

In the "Platzusanzen für den Hamburgischen Warenhandel" (PIU) published by the Hamburg Chamber of Commerce for the first time in 1904, the rules previously practiced as commercial practice were set down in writing for the first time.

The text of Section 20 PlU was last changed in 1958 and, from today's perspective, may only partially reflect the further developed and actual commercial usage and the changes in Book 10 of the 1998 Code of Civil Procedure .

The arbitration agreement

In contrast to usages in the actual commercial law sense, the rules of the PIU for Hamburg amicable arbitrage only become applicable through a corresponding arbitration agreement .

Section 20 PlU contains procedural rules for both arbitration proceedings and quality arbitrage, i.e. H. a mere arbitration procedure. It can be agreed that both are combined in a standardized procedure or carried out separately.

The procedure

If the parties agree to carry out arbitration proceedings according to the rules of the Hamburg amicable arbitrage, they and the arbitrators must administer the proceedings themselves. Because the Hamburg amicable arbitrage is, in contrast to the arbitration court of the Hamburg Chamber of Commerce, not an institutional arbitration. Rather, they are ad hoc arbitration tribunals, which are each newly formed, with the parties appointing people as arbitrators to resolve their dispute. In determining and carrying out the procedure, the arbitrators rely on any party agreements and the rules of Book 10 of the Code of Civil Procedure ( §§ 1025-1066 ZPO).

Appointment of arbitrators

According to § 20 No. 2 PlU, the arbitrage begins with the appointment of the arbitrators who, depending on the type of proceedings, act as arbitrators in quality arbitrage or as arbitrators in arbitration proceedings. The following representations relate to the arbitration procedure.

Section 20 No. 2 PlU is based on a two-referee model in which each party appoints an arbitrator. The plaintiff first names an arbitrator and asks the opposing party to appoint an arbitrator for its part. If the defendant is resident in Hamburg, the nomination must be made within three days, otherwise within one week. If this does not happen, the Hamburg Chamber of Commerce can appoint a compulsory arbitrator at the request of the plaintiff.

Only in the event that both arbitrators do not come to an amicable decision at the end of the procedure does Section 20 No. 4 PlU provide for the two arbitrators to consult an umpire.

The legal literature disputes whether the actual commercial custom is based on a two-person tribunal or a three-person tribunal.

Despite the international application of this form of arbitration tribunal, the eligibility of arbitrators according to § 20 No. 2 PlU is expressly limited to persons with residence and place of residence in Germany, whose nationality does not matter. The wording of § 20 No. 2 PlU does not say that such a restriction also applies to the chairman.

Applicable Law

The parties agree on the place of jurisdiction Hamburg (§ 20 No. 5 PlU) through the "Hamburger Freundschaftliche Arbitrage" and thus on the application of German procedural law in accordance with § 1025 (1) ZPO.

According to some arbitration decisions, this should also result in the applicability of German substantive law.

Individual evidence

  1. ↑ Münch: Preliminary remark to §§ 1025 ff. In: Thomas Rauscher, Wolfgang Krüger (Ed.): Munich Commentary on the ZPO . 4th edition. tape 3 . CH Beck, Munich 2013, p. Marg. 14 .
  2. ↑ Hamburg amicable arbitrage. Hamburg Chamber of Commerce, accessed on June 9, 2017 .
  3. ↑ a b c d Mike Oliver Korte: The Hamburg amicable arbitrage - an overview on the occasion of the 100th anniversary of the § 20 square rules for the Hamburg goods trade. In: Arbitration VZ 2004, Issue 5, pp. 240–245. Online at Hamburg Chamber of Commerce (facsimile, PDF, 1.5 MB) and at SKW Schwarz Rechtsanwälte (PDF, 155 KB), accessed on June 9, 2017
  4. ^ Klaus Hopt: Fourth book. Commercial transactions . In: Klaus Hopt, Adolf Baumbach, u. a. (Ed.): Beck'sche Kurzkommentare HGB . 37th edition. tape 9 . CH Beck, Munich, p. Section 346, marginal no. 39-40 .
  5. ↑ Arbitration according to the HfA v. 29. 12. 1998, RKS (above footnote 5) E 5a No. 19. Arbitral award according to the HfA v. May 17, 1962, HSG (above footnote 5), D 3a No. 1; Arbitration award according to the HfA v. December 2, 1968, HSG (above footnote 5) 3a No. 3.