Frankfurt Court of Appeal: Arbitrator’s Dissenting Opinion Violates Public Policy

To the best of my knowledge, this is the first time that a German court has gone on the record on the issue of dissenting opinions in arbitration: The Frankfurt Court of Appeals (Oberlandesgericht) has taken the view that the publication of a dissenting opinion by the minority arbitrator violates the procedural ordre public, thus constituting a reason to set aside the arbitral award pursuant to Section 1059 para. 2 no 2 b) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). I discuss the decision in detail in a post at the Kluwer Arbitration Blog. Here’s the summary:

tl;dr: There is much to be said for the fact that the disclosure of a dissenting opinion is inadmissible in domestic arbitral proceedings and violates the secrecy of of the tribunal’s deliberations (Beratungsgeheimnis) applicable to domestic arbitral tribunals, hence constituting a ground for setting aside the arbitral award pursuant to Section 1059 para. 2 no. 2 b) Code of Civil Procedure (ZPO) for violation of public policy (ordre public).

Photo:Unknown author, Frankfurt, Justizpalast 1889, marked as public domain, more details on Wikimedia Commons

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