Arbitration

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As arbitration , according to German ZPO arbitral method is called out of court settlement of a dispute in an orderly process by mediation or binding judgment. Basically, a distinction must be made between the arbitration proceedings, which are possible in many places and sometimes mandatory, before the state arbitration boards or approval boards , which are made up of voluntary arbitrators / judges of the peace or publicly recognized mediators , and the purely private arbitration proceedings before a private arbitration court at the contractually agreed request of the parties. The procedure takes an intermediate position at public arbitration boards , which are set up by associations or clubs for disputes among members or for certain industry-typical disputes.

Arbitration under private law

See main article: Arbitration

The arbitration in English called arbitration is a procedure before a non-state arbitration tribunal (a kind of private civil court ). An arbitration agreement between the parties is required . This means that legal recourse to the state civil courts is excluded. The dispute between the claimant and the defendant is ended by an award by one or more arbitrators. The arbitration award takes the place of a judgment of a state court. It is binding on the parties and can be declared enforceable.

Arbitration proceedings whose place of proceedings is in Germany are regulated by the tenth book of the Code of Civil Procedure ( §§ 1025 ff. ZPO), provided that the parties do not make any deviating regulations for their arbitration proceedings. If reference is made to the rules of procedure of an institution for arbitration, this shall be deemed to have been agreed. The details of the arbitration proceedings can then be waived in the arbitration agreement. Mandatory procedural guarantees are the right to a fair hearing and equal treatment of the parties ( § 1042 ZPO).

In contrast to state court proceedings, there is usually only one instance in arbitration proceedings . However, if there are gross procedural violations, a higher regional court can revoke the arbitral award upon request . In principle, the Higher Regional Court does not examine the accuracy of the content of the arbitral award (no appeal on a fund - exception: violations of public policy ). An institutionalized arbitration procedure can also provide that a "higher court of arbitration" examines the arbitral award for gross procedural violations and, if necessary, annuls it.

Another difference between state court proceedings and arbitration is that in state court proceedings the principle of the public ( Section 169 (1) GVG) applies to the negotiation and decision-making process , while arbitration is fundamental, i.e. H. unless otherwise agreed, are not public. However, confidentiality must also be agreed separately in arbitration proceedings. In relation to arbitration proceedings in which sovereigns are involved, the non-public nature of the proceedings is sometimes viewed as problematic from the point of view of the separation of powers (in particular the parliamentary control authority).

Arbitration proceedings with their own rules of procedure are offered by several institutions in Germany, such as B. from chambers of commerce or the German Institution for Arbitration ( DIS ).

Unlike the arbitration is Adjudikationsverfahren (Engl. Adjudication ) originally developed for construction disputes arbitrator process . In this, the procedural guarantees that are otherwise mandatory in arbitration proceedings can be freely agreed so that faster and summary decisions are possible, which can then be reviewed before an arbitration tribunal or a state court.

Procedure at an arbitration board

See main article: Approval Agency

Web links

literature

Individual evidence

  1. ↑ See: Johanna Wolff: Limit of Secrecy. In: New journal for administrative law . Volume 31, Issue 4, 2012, pp. 205 ff.