Oppenhoff’s offices in Cologne became the epicenter of a captivating legal discussion on 10 December 2024, with attendees treated to a master class in the subtle interplay between procedural rules, substantive law, judicial reasoning, and arbitration practice.
The evening was led by Thomas Winter, renowned for his incisive analysis. He explored the intricacies of arbitration law with a focus on the German Federal Court of Justice’s (BGH) approach.
The event was framed around the compelling question: “Does the BGH merely conduct a correctness review?” However, with characteristic sharpness, Winter mused whether the session might better have been titled, “Should the BGH take ordre public more seriously?”
Central to the evening’s discussion was the examination of recent BGH decisions that illustrate the nuances of arbitration law. A July 2024 case provided a fascinating example of the formal requirements for arbitration awards. Thomas Winter detailed how the BGH upheld the validity of an award missing one arbitrator’s signature, as long as the omission was explained by the statement: “Signature could not be obtained.”
The BGH found this explanation sufficient under the 10th Book of the German Civil Procedural Code (Zivilprozessordnung -ZPO-), emphasising its intent to prevent misunderstandings about inadvertent omissions. Winter’s detailed analysis of this ruling offered fresh perspectives on procedural precision in arbitration.
Another focal point was an October 2023 decision exploring material grievance. The BGH considered whether a party that had already fulfilled its obligations under an arbitration award could still claim to be “aggrieved” and thus entitled to seek to set aside the award. This case, as Winter highlighted, underscores the delicate balance between arbitration’s finality and the broader principles of justice, raising significant questions about the (negative) implications of complying (paying) with the award. Law often surprises us -much like opening a box of chocolates, you cannot quite predict what (legal) consequences your actions will yield.
The next procedural challenge revolved around a March 2022 case where a party sought a declaration from a German court that a Russian arbitration award could not be enforced in Germany. This case highlighted a procedural gap. While the 10th Book of the ZPO does not explicitly allow for a declaratory action (Feststellungsklage) concerning the (non-)enforceability of an arbitral award, some argued that §1059 ZPO (application to set aside an award) could be applied analogously to resolve the issue. Others maintained that §256 ZPO, which governs declaratory judgments in general, should directly apply. The BGH ultimately sided with the first interpretation, ruling that §1059 ZPO could be used by analogy in such cases.
Winter also delved into ordre public and the right to be heard under Article 103 of the German Constitution. Using an illustrative case from 2019, he emphasized that arbitral tribunals must engage intellectually with the substance of the parties’ arguments, rather than merely summarizing or copying them. He stressed that genuine legal analysis is essential to uphold both the principles of the right to be heard, and fair process. He also raised a provocative question: Is it the BGH’s role to correct procedural mediocrity in arbitration or mediocre arbitral awards?
Afterwards, the audience was “released” for further discussion with peers in a relaxed setting amid a Christmas atmosphere kindly prepared by Oppenhoff under the leadership of Vanessa Pickenpack.
Elizabeth Hincapié Hincapié