A. LEGISLATION, TRENDS AND TENDENCIES
There have been no relevant changes to German arbitration
legislation in the past year.
B. CASES
B.1 Invalidity and Severability of an Arbitration Clause
In a decision of September 10, 2013,4 the Court of Appeal
Munich was concerned with an arbitration clause that provided
for dispute settlement in accordance with the rules of the German
Institution for Arbitration (DIS). The clause conferred upon the
tribunal the power to “render a binding decision as to the validity
of this arbitration agreement”. The empowerment gave rise to
difficulties, as it could deprive the parties of their right to request
a state court to decide on the tribunal’s jurisdiction. Furthermore,
the arbitration clause was part of a notarized sale and transfer
agreement, but the DIS arbitration rules to which the arbitration
clause referred were not notarized separately. The defendant in
the arbitration (and applicant in the state court proceedings)
challenged the jurisdiction of the arbitral tribunal, arguing that
the entire arbitration agreement was void (1) for lack of
notarization of the DIS Rules and (2) because the “Kompetenz-
Kompetenz” provision rendered the entire arbitration clause
invalid.
The Court of Appeal Munich held that (1) the institutional
arbitration rules referred to in a contract requiring notarization do
not have to be notarized separately, (2) the second sentence of
the arbitration clause was in fact void, but that (3) as the sentence
was severable, the arbitration agreement was valid.