As if Schalke 04 did not have enough problems as it is this season, given their current standing in the Bundesliga, the club through no fault of their own could not play their first-round match in the German Cup. Schalke fell victim to a dispute between two Bavarian clubs, fourth-division side Schweinfurt 05, and newly promoted third-division club Türkgücü Munich. The Bavarian Football Association (Bayerischer Fussballverband, BFV) nominated Schweinfurt 05 for of the 2020/2021 Cup season. However, Türkgücü felt that they should have been nominated, and obtained an injunction in the Munich courts, which prevented the match between Schweinfurt 05 and Schalke 04 to be played as scheduled on 13 September 2020.
In today’s guest post, Jakob Horn summarizes his doctoral thesis on key legal issues around emergency arbitration, Der Emergency Arbitrator und die ZPO, published by Mohr Siebeck. Jakob primarily discusses the emergency arbitrator in the context of German law. Despite this focus, his findings are easily transferrable to other jurisdictions, as Germany has adopted the UNCITRAL Model Law on International Commercial Arbitration.
In commercial life, from time to time conflicts arise that require prompt action to avoid irrevocable harm. For instance, imagine a scenario where a business agreed on a non-compete clause with a former business partner. A violation of this non-compete clause would pose an immediate danger to the business, requiring prompt enforcement.
Traditionally, most state courts offer injunctions in such circumstances. However, in the commercial world today, parties often opt for an arbitration clause for reasons such as confidentiality. How does one uphold these arbitration agreements as well as seek urgent relief?
The answer is the emergency arbitrator. In the last 14 years, most large arbitral institutions around the world, such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Hong Kong International Arbitration Centre (HKIAC) have introduced the emergency arbitrator as a tool in their toolbox to deal with such urgent cases. Continue reading
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: Continue reading
Anyone summoned by a state court to be heard as a witness is in principle obliged to appear and testify (Section 380, 395 et seq. Code of Civil Procedure ZPO) and the courts can enforce that obligation. Things are different, however, in arbitration: There is no duty to appear before an arbitral tribunal. Continue reading