The New German Arbitration Act v. Old German Case Law: Which Case Law of the Bundesgerichtshof (German Federal Supreme Court) is to be Applied to the New Act?

Abstract

THE DECISIONS of the Bundesgerichtshof (Federal Supreme Court), the highest German court in civil matters, with few exceptions are in favour of arbitration and enforceability of arbitral awards, especially if the arbitration concerns genuine commercial transactions among equals. The court's position is less liberal when general conditions are used to block consumers from access to the state courts or to cut their rights in the arbitration procedure against the rights of the user. Since the UNCITRAL Model Law1 was published in 1985 the court has shown a tendency to make the Model Law the implicit standard of its decisions. A large portion of the recent Bundesgerichtshof decisions concerning international arbitration ‘fit’ the Model Law as if it had been in force in Germany for some time and the judicial rulings had been based on its provisions. The new German Arbitration Act which is largely based on the Model Law2 therefore meets a body of court decisions which, on the face of it, concern an act more than 100 years old, whose essential structure, however, corresponds with the new Act. The following is a description of Bundesgerichtshof decisions on national and international arbitration rendered after publication of the Model Law, which will remain valid under the new German Arbitration Act. ### (a) Form The arbitration agreement must be in writing, § 1031(1) ZPO ( Zivilprozes-ordnung – Civil Procedure Act). This primarily means the essentials of the agreement. But what about the naming of a party, e.g. if the contract is negotiated by the group's head office in Switzerland but the partner to the contract is to be a subsidiary domiciled in France? The requirement of writing includes the naming of the parties to the arbitration agreement. This requirement is satisfied if the parties are described in the document in a way that allows …