Arbitration agreement

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By means of an arbitration agreement (also an arbitration agreement or arbitration clause if the agreement is part of a larger contract), the parties exclude state jurisdiction for legal disputes from a contractual relationship and agree on a decision by an arbitration tribunal . The arbitration agreement is therefore the indispensable basis of legitimation for an arbitration tribunal to act.

According to German and Austrian law, it must be concluded in writing and can already be concluded when the contract is concluded, retrospectively to a specific contract or only for a conflict that has already arisen.


Private arbitration proceedings with the place of arbitration in Germany are based on §§ 1025 ff. Of the Code of Civil Procedure (ZPO), unless the parties make their own regulations or it is not an arbitration contract in labor disputes (see § § 101  ff. ArbGG ). If reference is made to the rules of procedure of an arbitration institution , this is deemed to have been agreed. The details of the arbitration procedure can then be dispensed with in the arbitration agreement.


The admissible form of the arbitration agreement is regulated in § 1031 ZPO. Arbitration agreements can also be made between entrepreneurs through general terms and conditions.

Applicable Law

The law applicable to the arbitration agreement may differ from the law applicable to the matter in dispute. In particular, the parties can choose the law applicable to the arbitration agreement separately from the main contract. If German law is to be applied, the establishment and effectiveness are based on the substantive provisions of the BGB.


According to Section 1032 of the German Code of Civil Procedure (ZPO), if the dispute is subject to an arbitration agreement and the defendant invokes it, a state court called on has to declare that it has no jurisdiction and to reject the action. The arbitration agreement must always relate to a specific legal relationship. This is to prevent parties from referring to the legal judge under Article 103 of the Basic Law for a vast number of cases of their right .

European Union

Arbitration clauses, with which investors from EU member states can bring a lawsuit against another EU member state, are incompatible with the basic principles of EU law according to the judgment of the European Court of Justice (ECJ) of March 6, 2018.

Individual evidence

  1. ECJ, judgment of March 6, 2018, Az. C-284/16. Quoted from: Nico Basen: ECJ on arbitration clauses in investment protection agreements. You shall have no other jurisdiction besides me. In: Legal Tribune Online. March 6, 2018, accessed March 6, 2018 .