Arbitration

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The arbitration is a legal means of dispute resolution in the context of arbitration . Arbitration tribunals are non-state courts that meet solely on the basis of an agreement between the respective parties to the dispute and issue judgments known as arbitration awards . The agreement is generally in the form of a contract between the parties, the arbitration agreement . The arbitration award is usually legally binding on the parties and can be declared enforceable in state courts.

history

Private arbitration courts already existed in Germany in the Middle Ages. The legal structures were based on Roman and canon law. An example of institutionalized arbitration courts can be found as early as the 17th century. In 1697 the Mercantil and Bancogericht was founded in Nuremberg in the vicinity of the Banco Publico . This commercial court was responsible for the jurisprudence in Nuremberg and prepared reports for foreign legal matters. Arbitration has always existed in disputes between states. For example, an arbitration tribunal was also used under the Jay Agreement between the United Kingdom and the United States. This should regulate questions about the border with British Canada. The solution of the Alabama question through arbitration in 1872 is considered a milestone in international arbitration between states .

In the early social justice system in Germany, arbitration tribunals existed for accident and pension insurance until 1911 (from 1900: “Arbitration tribunals for workers' insurance”), but they functioned as permanent special courts of administrative jurisdiction.

Another example of arbitration tribunals are the “social courts” (arbitration commissions and conflict commissions) of the GDR , which were set up on the Soviet model and replaced in 1990 by municipal arbitration boards.

Investment protection agreements often contain clauses that allow foreign investors to take the states in which they have invested before arbitration tribunals ( investor-state dispute settlement ).

Private arbitration

Arbitration courts based on contractual agreements are now of greatest importance. Often this area is summarized by the term Commercial Arbitration (English: commercial arbitration ), the settlement of disputes between individuals is common as the trade in other sectors.

Advantages and disadvantages of private arbitration

Referring to private arbitration tribunals is regularly an alternative to seeking legal protection from state courts. Accordingly, the aspects listed below are compared to the normal legal process.

General advantages

  • an acceleration of proceedings that can sometimes be achieved in relation to the state jurisdiction
  • possible cost advantages, especially in proceedings with a large amount in dispute
  • the procedure can be adapted more flexibly to the wishes of the parties, for example with regard to the place and language of the negotiation
  • In contrast to court hearings, arbitration proceedings are generally non-public, and the confidentiality of the proceedings can be agreed. The fact that the arbitration proceedings are by their very nature to be treated confidentially is judged very differently both in Germany and internationally.
  • The parties can appoint arbitrators who, for example, bring special legal or technical expertise.
  • The procedural law can be adapted to the peculiarities of the underlying "main contract" and reacts flexibly to changes requested by the parties in accordance with the principle of party autonomy.

Advantages in cross-border disputes

In the event of disputes between parties from different countries, there are additional advantages:

disadvantage

However, the informality and the goal of quick dispute resolution also result in disadvantages:

  • The largely lacking authority path increases the risk of uncorrected wrong decisions.
  • Depending on the individual case, the costs of the proceedings can be higher than in state courts.
  • The independence of the arbitrators, who on the one hand often also work as lawyers and on the other hand are sometimes appointed by the parties themselves, is not always guaranteed.
  • Unlike state courts, arbitral tribunals cannot impose coercive measures. B. for the forced summoning of witnesses dependent on the support of state courts ( § 1050 ZPO)
  • The involvement of third parties in a process by third party notice is possible only with the consent of all parties
  • Since arbitration awards are usually not published, they cannot contribute to the development of the law .

Course of the procedure

The following describes the typical course of arbitration proceedings under the German ZPO. The arbitration rules of arbitration institutions sometimes provide for a slightly different procedure, and the parties can adapt the procedure in many places to their own needs.

Initiation of the procedure

The arbitration process usually begins when the defendant receives an introductory brief ( Section 1044 ZPO). This brief must designate the parties, state the subject of the dispute and refer to the arbitration agreement. However, the plaintiff does not have to present the facts on which the claim is based, nor make a specific application. From the receipt of the introductory brief, the statute of limitations according to § 204 No. 11 BGB is also suspended.

Appointment of the referees

The number of arbitrators can be determined by the parties themselves, § 1034 ZPO. If the parties fail to make a decision, three arbitrators are to be appointed. In addition to the number of arbitrators, the mechanism for their appointment is usually part of the contract between the parties. In the absence of such an agreement, each party appoints an arbitrator at a triad arbitration tribunal; the two so appointed then agree on a chairman, § 1035 ZPO; this is called arbitrator or simply chairman. If an agreement cannot be reached, the chairman is often appointed by an appointment office, according to § 1062 ZPO regularly by the higher regional court at the place of the arbitration.

The referees who are nominated for the party must also be impartial and independent. To ensure this, the parties have the right to refuse arbitrators because of concerns about bias , Section 1036 ZPO. If the arbitrator does not voluntarily resign, the arbitral tribunal will decide on the application. If it decides against the rejection, the party who submitted the application can have this decision examined within one month in front of a state court, § 1037 ZPO.

Taking of evidence and hearing

In contrast to state courts (cf. § 128 ZPO), an oral hearing in arbitration proceedings according to § 1047 ZPO is optional, but it is common practice in practice.

The taking of evidence by an arbitration tribunal is made more difficult by the fact that it has no compulsory powers, i.e. it cannot forcibly bring witnesses to the court. However, according to Section 1050 ZPO, there is the possibility of obtaining support from a state court.

Arbitration award

According to Section 1054 of the German Code of Civil Procedure (ZPO), the arbitration award must be issued in writing and generally must be justified. Between the parties it has the effect of a legally binding judicial judgment § 1055 .

Award with agreed wording

If the parties compare , they can have the settlement recorded as an arbitration award with agreed wording according to § 1053 ZPO, which has the same effect as an arbitration award on the matter and can thus be enforced like a normal arbitration award.

Appeal against the arbitral award

The only legal remedy against an effective arbitral award is the application for annulment according to § 1059 ZPO. The higher regional court is responsible according to § 1062 ZPO. It does not check the arbitration award in full like an appellate body , but only for particularly serious violations of the right to be heard or of public policy . Simple wrong decisions by the arbitral tribunal are not sufficient to set aside the arbitral award. According to Section 1065 of the German Code of Civil Procedure (ZPO), the legal remedy against the decision to repeal is an appeal on points of law to the Federal Court of Justice .

enforcement

Arbitration awards made domestically must be declared enforceable by a state court in accordance with Section 1060 of the German Code of Civil Procedure (ZPO) before they can be enforced . Foreign arbitral awards are recognized and enforced according to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Section 1061 ZPO.

Applicable procedural and material law

The parties agree by means of an arbitration clause in the main contract or in a separate arbitration agreement that future disputes arising from a specific legal relationship should not be settled before state courts, but rather before an arbitration tribunal. The arbitration agreement often also specifies the applicable procedural law and the place of arbitration . If the parties fail to agree on the applicable procedural law, the law of the place of arbitration ( lex loci arbitri ) is usually applicable (Germany: § § 1025 ff. ZPO ; Austria: § § 577 ff. ZPO ; Switzerland: Art. 353 ff. ZPO or . Art. 176 ff. PILA ).

The arbitration clause also determines whether the parties want to set up an ad hoc court of arbitration or use an arbitration institution. If the parties decide in favor of an arbitration institution, they usually provide their own procedural rules. In the context of ad hoc arbitration tribunals, in addition to national or self-created procedural rules, the application of a (modified) institutional set of procedural rules can be chosen. In addition, with the UNCITRAL Arbitration Rules, UNCITRAL provides its own set of rules for ad hoc proceedings.

How the applicable substantive law is to be determined follows from the applicable procedural law. The German ZPO is  primarily based on a party agreement in Section 1051 ZPO. As a subsidiary rule, it refers to the law with the closest connection to the respective dispute as a rule of conflict. The Rome I Regulation is not applicable in arbitration proceedings ( Art. 1 Paragraph 2 lit. e Rome I Regulation).

Institutional and ad hoc arbitration

Ad hoc arbitration

Arbitration tribunals can be set up ad hoc without the help of an external body. The organization of the appointment of arbitrators and the procedure is then a matter for the parties. They also need to agree on the applicable procedural rules, the payment of the arbitrators and the location of the proceedings. In this way, you can flexibly adapt the procedure to your needs, but you may have an increased administrative and negotiation effort.

Institutional arbitration

Arbitration institutions also exist. On the one hand, they provide their own procedural rules; on the other hand, they support the parties for a fee in selecting the arbitrators (e.g. by maintaining appropriate lists of experienced practitioners) and in organizing the proceedings. Often the parties already specify an administrative institution in the arbitration agreement.

Probably the largest arbitration institution in Germany is the German Institution for Arbitration (DIS) based in Cologne, in Austria this is the Vienna International Arbitral Center (VIAC) of the Austrian Chamber of Commerce based in Vienna, in Switzerland the Swiss Chamber's Arbitration Institution (SCAI ) based in Geneva. The main international organizations in the field of commercial arbitration are the Court of International Arbitration of the International Chamber of Commerce (ICC) in Paris, the American Arbitration Association (AAA) in New York City and the London Court of International Arbitration (LCIA).

There are also “permanent” arbitration tribunals. These are z. B. by the chambers of industry and commerce , such as the Hamburg Chamber of Commerce , by the bar associations , by companies or within political parties ( party arbitration ).

In sport too, arbitration courts such as the International Sports Court or the German Sports Arbitration Court are often called upon . The stage arbitration tribunal is an institution of the (German) Cooperative of German Stage Members.

Public arbitration

Public-law disputes can also be heard before arbitration tribunals. Instead of the ordinary courts, according to Section 173 VwGO, the administrative courts are then responsible for supporting the arbitral tribunal, otherwise the tenth book of the ZPO is also applicable to public arbitration proceedings. Public-private partnership agreements typically contain arbitration clauses.

Investment arbitration

Disputes between foreign investors and the host state in which they have invested are often brought before international arbitration tribunals on the basis of investment protection agreements or contracts between the investor and the host state . The most important institution in this area is the International Center for Settlement of Investment Disputes (ICSID) of the World Bank in Washington DC

Interstate arbitration

Just as on the private sector level, arbitration courts also exist at the intergovernmental level and thus offer an alternative to the institutionalized courts of law such as B. the ICJ . The parties to the dispute, in this case states as a rule, can exert direct influence on the arbitration proceedings both through the choice of judges and through the determination of the applicable law. The Permanent Court of Arbitration , established with the Hague Agreement for the Peaceful Settlement of International Disputes of 1899, is the most prominent institution for providing the infrastructure (pool of judges, rooms, secretarial staff and so on) necessary for the implementation of arbitration proceedings Example in ancient Greece, international arbitration tribunals.

Practical Importance of Cross-Border Arbitration

In a study from November 2014 on the law and practice of arbitration tribunals, the European Parliament found that cross-border arbitration proceedings are rather the exception in the European Union and Switzerland . This result is surprising insofar as the legal basis and procedural rules for arbitration proceedings according to this study are very broad in the EU. Thus, the formal requirements for cross-border arbitration proceedings are also available, but are not used.

See also

literature

  • Wolfram Buchwitz : Arbitration Law . Springer, Berlin 2019, ISBN 978-3-662-59462-9 and ISBN 978-3-662-59461-2 .
  • Jens-Peter Lachmann: Handbook for arbitration practice. 3rd, completely revised edition. Schmidt, Cologne 2008, ISBN 978-3-504-47128-6 .
  • Gary B. Born: International Commercial Arbitration. 2nd Edition. Kluwer Law International, 2014, ISBN 978-9041152190 .
  • Peter Schlosser: The law of international private arbitration. 2nd, completely revised edition. Mohr, Tübingen 1989, ISBN 3-16-644812-8 .
  • Philippe Fouchard, Emmanuel Gaillard, Berthold Goldman: On International Commercial Arbitration. Kluwer Law International, The Hague u. a. 1999, ISBN 90-411-1025-9 .
  • Karl Heinz Schwab , Gerhard Walter : Arbitration. Systematic commentary on the provisions of the Code of Civil Procedure, the Labor Court Act, the State Treaties and the Cost Acts on private arbitration proceedings. 7th, revised edition of the work founded by Adolf Baumbach. Beck et al. a., Munich 2005, ISBN 3-406-53158-X .
  • Richard H. Kreindler, Jan K. Schäfer, Reinmar Wolff: Arbitration. Compendium for practice. Verlag Recht und Wirtschaft, Frankfurt am Main 2006, ISBN 3-8005-1410-9 .
  • Rolf A. Schütze: Arbitration and arbitration. ( NJW Praxis. Vol. 54.) 4th, revised and expanded edition. Beck, Munich 2007, ISBN 978-3-406-54529-0 .
  • Rolf A. Schütze: International Arbitration. Comment. 3rd edition, Carl Heymanns, 2017, ISBN 978-3452286284 .
  • Hermann Hoffmann: Arbitral tribunals as winners of globalization? An empirical analysis of the importance of public and private jurisdiction for international trade. Journal of Arbitration Law 2010, pp. 96–101.
  • Lena Rudkowski: Introduction to Arbitration Law , Legal Training , 2013, 398

Web links

Individual evidence

  1. ↑ Rudolf Endres: The independently acting merchants . In: In the sign of the scales - economy and society in transition - 425 years of Nuremberg Commercial Director , Nuremberg 1985, pp. 37–38
  2. ^ Markus A. Denzel: The Nuremberg Banco Publico, his merchants and their payment transactions (1621–1827) , Stuttgart 2012, p. 90
  3. ↑ See Wolfgang Ayaß : ways to social jurisdiction. Arbitration courts and Reich Insurance Office until 1945 , in: Peter Masuch / Wolfgang Spellbrink / Ulrich Becker / Stephan Leibfried (eds.): Fundamentals and challenges of the welfare state. Memorandum 60 years of the Federal Social Court. Volume 1. Characteristics and future of social policy and social law , Berlin 2014, pp. 271–288; see. Wolfgang Ayaß: The jurisprudence in the social insurance up to the Reichsversicherungsordnung. Participants, institutions, proceedings , in: Peter Collin (Ed.), Justice without the State within the State. Judicial Self-Regulation in the Past and Present , Frankfurt am Main 2016, pp. 243-259.
  4. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 27
  5. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 11
  6. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 22 f.
  7. ↑ In transnational law it is assumed that arbitration is confidential, unless something else has been agreed: Trans-Lex.org
  8. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 28 f.
  9. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 26th
  10. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 34
  11. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 31 ff.
  12. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 43
  13. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 44
  14. ↑ Kreindler / Rust in Beck'sches Rechtsanwalts-Handbuch, 10th edition 2011, § 7 Rn. 45
  15. ↑ Voit in Musielak ZPO, 11th edition 2014, § 1044 Rn. 2
  16. ↑ Voit in Musielak ZPO, 11th edition 2014, § 1044 Rn. 3
  17. ↑ Angelika Schmid, arbitration tribunal
  18. ↑ Münch in Munich Commentary on ZPO, 4th edition 2013, § 1036 Rn. 31
  19. ↑ Wilske / Markert in Beck'scher Online Comment ZPO, status: January 1, 2015, § 1047 Rn. 2
  20. ↑ Voit in Musielak, ZPO, 11th edition 2014, § 1050 Rn. 2
  21. ^ Arbitration court of the Hamburg Chamber of Commerce
  22. ^ DIS, new address
  23. ↑ Meissner in Schoch / Schneider / Bier, Administrative Court Regulations, 26th supplementary delivery 2014, § 173 Rn. 316
  24. ↑ Wolff, Limit of Secrecy: Non-public arbitration with the participation of the public sector on the standard of constitutional law, NVwZ 2012, 205
  25. ↑ Martin Dreher : Hegemon and Symmachoi. Studies on the second Athenian League (= studies on ancient literature and history. Vol. 46). de Gruyter, Berlin a. a. 1995, ISBN 3-11-014444-1 , p. 143 (also: Konstanz, Univ., Habil.-Schr., 1991/92).
  26. ↑ Legal Instruments and Practice of Arbitration in the EU , PE 509.988. The study was prepared by the Legal Affairs Committee of the EU Parliament (JURI) and presented there on February 23, 2015.
  27. ^ Study, p. 3 "Abstract": "... the Study finds that arbitration in the European Union is predominantly regional, rather than transnational."