Arbitration report

With the agreement of an arbitration report, parties to a legal dispute can have individual legal and factual issues clarified by a neutral third party. The results of the arbitration report can then only be checked to a limited extent in court.

A corresponding agreement between the parties is a prerequisite for the binding effect of an arbitration report. The agreement can be made informally. But because it restricts the possibility of obtaining legal protection before state courts, it can be immoral in individual cases ( § 138 BGB) or ineffective as general terms and conditions according to § 307 BGB.

Differentiation from other forms of dispute resolution

Unlike an arbitrator , the arbitrator does not decide on an entire legal dispute, but only on individual aspects. An arbitration agreement is therefore present if the parties want to exclude the way to the ordinary courts altogether. In contrast, an arbitration report is desired if there is to be the possibility of judicial review in accordance with Section 317 of the German Civil Code.

Types of arbitration reports

The legal literature distinguishes between different types of arbitration reports:

Contractual performance determination

The parties to a contract are free not to determine the contractually owed service themselves, but to leave the determination to a third party. This can also be the case retrospectively: For example, the parties to a rental contract can initially agree on a rental price and agree that the rental amount is appropriately adjusted by a neutral third party at certain intervals. In both cases, § 317 ff. BGB are directly applicable.

Clarifying opinion

If the parties have determined the contractually owed service, but cannot determine the specific service content, an arbitrator can be called in to determine the content of the contract. An example is the determination of the “customary” or “reasonable” rent. The § 317 ff. BGB apply analogously.

Evidence report

Arbitration experts can also be called in as experts to make statements about facts, e.g. B. on the amount of damage caused by improper construction of a new building, the current value of a car or the value of a company. Unlike an ordinary expert, whose results can only be used as evidence in the process and are subject to the free evaluation of evidence according to § 286 ZPO, the arbitration report binds the parties. The § 317 et seq. BGB are also applicable by analogy.

Appeal against arbitration reports

According to Section 319 (1) sentence 1 of the German Civil Code (BGB), the arbitration report is only checked to see whether it is "apparently unfair".

In the case of the contractual performance determination by an arbitrator, the court examines in direct application of the norm whether the performance determination grossly violates good faith and whether this is immediately apparent to a knowledgeable and impartial observer. The standard is objective, so the arbitrator does not have to be responsible for the inequity.

In the case of legal and evidence reports, the appraiser does not have to decide at his reasonable discretion, but rather correctly. The arbitration report is therefore non-binding in the analogous application of Section 319 (1) sentence 1 BGB if the inaccuracy imposes itself on a knowledgeable and impartial observer, at least after a detailed examination.

In addition to the direct or corresponding wording of Section 319 (1) sentence 1 BGB, the case law treats arbitration reports as non-binding if the reasoning for the report is severely inadequate because the assessment procedure is unsuitable or the statements are incomprehensible or cannot be verified.

literature

• Stefan Leupertz, Achim Hettler: The building surveyor in court: practical guide. 2nd edition, Fraunhofer IRB Verlag, 2013, ISBN 978-3816789352 .

Web links

• Information on arbitration reports, arbitrator clause and arbitrator contract in Swiss law
• Arbitration reports, arbitration proceedings, the fast and effective alternative to state jurisdiction
• Arbitration reports in IT

Individual evidence

1. ↑ cf. Munich Commentary on BGB- Würdinger , 6th edition 2012, § 317 Rn. 33.
2. ↑ Palandt- Grüneberg , 70th edition 2011, § 317 BGB margin no. 1; § 307 BGB marg. 130.
3. ↑ OLG Hamm: Judgment of October 28, 2008 - I-19 U 64/08, 19 U 64/08, BeckRS 2008, 24432.
4. ↑ Palandt- Grüneberg , 70th edition 2011, § 317 BGB margin no. 8th.
5. ↑ cf. Munich Commentary on BGB- Würdinger , 6th edition 2012, § 317 Rn. 29 ff.
6. ↑ z. B. BGH, judgment of February 2, 1977 - VIII ZR 155/75, NJW 1977, 801.
7. ↑ cf. Munich Commentary on BGB- Würdinger , 6th edition 2012, § 317 Rn. 29, 30.
8. ↑ BGH, judgment of June 4, 1975 - VIII ZR 243/72, NJW 1975, 1557.
9. ↑ Munich Commentary on BGB- Würdinger , 6th edition 2012, § 317 Rn. 38.
10. ↑ cf. Palandt- Grüneberg , 70th edition 2011, § 317 BGB marg. 6 with further examples.
11. ↑ BGH, judgment of June 6, 1994 - II ZR 100/92, NJW-RR 1994, 1314
12. ↑ Munich Commentary on BGB- Würdinger , 6th edition 2012, § 317 Rn. 38.
13. ^ BGH, judgment of April 26, 1991 - V ZR 61/90, NJW 1991, 2761
14. ↑ Palandt- Grüneberg , 70th edition 2011, § 319 BGB margin no. 3.
15. ↑ BGH, judgment of June 27, 2001 - VIII ZR 235/00, NJW 2001, 3775
16. ↑ Palandt- Grüneberg , 70th edition 2011, § 319 BGB margin no. 5a.

Please note the information on legal issues!