The February edition of Lunch DIScussions focused on key points of case law from 2025. Moderated by Anke Meier, Alice Broichmann and Gustav Flecke-Giammarco analysed two highly publicised decisions by German courts on arbitration.
In December 2025, the Federal Court of Justice ruled that a referral back to the arbitration tribunal pursuant to Section 1059 IV of the German Code of Civil Procedure (ZPO) at the request of one party is not limited to exceptional cases and is not precluded by the objection of the other party. As a result of a standardised exercise of discretion, a referral back is ruled out in the event of an obvious, serious violation of a party's right to a fair hearing. The assessment of the specific suitability of the case for referral back is the responsibility of the competent state court and can only be reviewed to a limited extent in appeal proceedings (Federal Court of Justice, decision of 18 December 2025 – I ZB 42/25).
The practice regarding Article 36(5) ICC Arbitration Rules raises the question of whether the DIS Arbitration Rules should be supplemented by a provision to regulate, above all, the cost consequences of a referral back.
In May 2025, the Bavarian Higher Regional Court (BayObLG) issued a preliminary ruling in a dispute concerning defective decisions, stating that parties to the arbitration proceedings who have not applied for the annulment of the arbitral award must be involved in accordance with Sections 62 and 69 of the German Code of Civil Procedure (ZPO). However, parties who are merely affected may not be involved in the annulment proceedings, even though a decision has an effect on them. The BayObLG also confirmed that a DIS Supplementary Rules for Corporate Disputes arbitration agreement meets the minimum standards required by BGH case law and that isolated positive declaratory actions fall within its scope of application (BayObLG, preliminary ruling of 7 May 2025 – 101 Sch 139/24e).
Both decisions demonstrate the functioning interfaces between arbitration and state jurisdiction.
Karsten Grillitsch