Arbitration Meets Sanctions – How EU Entities Can Tackle Russian Avoidance Tactics Before German Courts
Client Alert | October 31, 2024
This update examines why Germany does not require anti-(anti) suit injunctions and how EU entities with a nexus to Germany can counter Russian avoidance tactics in German courts, particularly in light of Russian anti-arbitration injunctions based on Article 248.1 of the Russian Arbitration Procedure Code. It highlights the existing tools within the German legal system available to affected parties, illustrating why Germany need not adopt Anglo-American-inspired anti-suit injunctions.
I. Introduction
Over the past months, there has been quite a number of cases in which Russian entities have resorted to local courts, asking the court to claim exclusive jurisdiction over a dispute with EU-domiciled opponents and applying for an anti-arbitration injunction on the basis of Article 248.1 of the Russian Arbitration Procedure Code – despite an obviously valid arbitration agreement. It may well be said that, unsurprisingly, in almost all of these cases, this led to a detrimental judgment for the involved EU party,[1] including the issuance of extremely high fines in case of non‑compliance with the injunction. It is needless to say that these state court proceedings do not adhere to the rule of law. This approach exposes EU‑parties to a high economic risk, especially when judgments are to be enforced in countries where the EU entity has assets, though enforcement within EU member states remains unlikely.
This article analyzes how EU entities with nexus to Germany may tackle these avoidance tactics of Russian parties before German courts. In particular, the article examines which tools the German legal system already provides for affected parties and whether there is an actual need for the German jurisprudence to introduce the concept of anti‑suit injunctions, as inspired by Anglo‑American legal systems. Perhaps surprisingly, the German legal system already seems to provide sufficient instruments parties can resort to in order to protect themselves and finally bring their case to arbitration.
II. Background
1. Articles 248.1, 248.2 Russian Arbitration Procedure Code
In response to EU sanctions, Russia introduced amendments to its Arbitration Procedure Code to protect “the rights of individuals and legal entities in connection with restrictive measures introduced by a foreign state (…) or state association” in 2020.[2] This legislation gives Russian state courts the power to claim exclusive competence over disputes involving “sanctioned” parties even if the parties have explicitly agreed to submit their disputes to arbitration (Article 248.1). The only requirement is that arbitration outside of Russia is “not feasible” due to the application of restrictive measures against one party by a foreign state, which must create an “obstacle to access to justice” for that party (Art. 284.1(4)). The Russian courts interpret this requirement very broadly, as recent decisions have shown. Accordingly, obstacles to access to justice are assumed if a party is subject to “sanctions” imposed by the state in which arbitral proceedings are meant to take place. Further, parties may apply for an anti‑arbitration injunction before Russian courts in these situations (Art. 248.2).
Thus, the Russian Arbitration Procedure Code not only gives Russian entities the possibility to avoid arbitration agreements and go to state court instead, but also to effectively fend off upcoming or pending arbitral proceedings. Considering that Russian courts, when issuing anti‑suit injunctions, have often imposed additional fines in case of non-compliance, those new instruments may have serious consequences for EU parties wanting to enforce a claim or an arbitral award in Russia.
The number of anti-arbitration injunctions based on Art. 248 issued by Russian courts has significantly risen in the past two years.[3] When rendering those injunctions, Russian courts frequently invoke allegedly sweeping restrictions of Russian entities even if the company in question is not directly sanctioned under EU law. In particular, Russian courts have been arguing that Russian parties would not obtain sufficient legal representation in the EU, resorting to the ban on providing legal advice to Russian companies under Article 5n(2) of Regulation (EU) No. 833/2014 (EU-Sanctions Regulation). It has been definitively confirmed, however, that these arguments lack any foundation, as demonstrated by the General Court of the European Union: In three very recent decisions, the General Court confirmed that the general prohibition on providing legal advice to the Russian entities or bodies established in Russia under the EU‑Sanctions Regulation does not extend to services provided in connection judicial, administrative, or arbitration proceedings, as laid down in the respective exception of Article 5n(5) of EU-Sanctions Regulation.[4]
2. The EU’s 14th Sanctions Package of June 2024
The EU responded to these developments in June 2024 by introducing provisions within a new sanctions package (Regulation (EU) 2024/1745 of 24 June 2024) setting out amendments to the EU Sanctions Regulation.[5] The sanctions package introduces a transaction ban prohibiting any direct and indirect transactions with persons and entities who have initiated claims before Russian courts based on Art. 248.1 Russian Arbitration Procedure Code, after these persons have been listed in Annex XLIII of the Regulation (Article 5ab). Further, the regulation provides EU entities with a new damage compensation mechanism in case arbitration agreements are undermined by sanctioned parties. Specifically, EU persons are entitled to damages against Russian persons or entities if (i) they initiated proceedings outside of the EU (ii) in connection with contracts or transactions affected, directly or indirectly, by EU sanctions and (iii) if no effective access to justice was provided to the EU person (Article 11a). Given that the regulation provides that entities are entitled to “any damages, including legal costs incurred by that person in a consequence of (these) claims”, damages may well include fines imposed by Russian state courts alongside with anti-arbitration injunctions. Thus, Article 11a of the EU‑Sanctions Regulation intends to provide an instrument for EU entities affected seeking to enforce damage claims within the EU. However, it is unclear how national courts of the different Member States will apply Article 11a. The regulation merely sets out the scope of the compensation, however, it does not contain any further provisions. In this regard, each Member State will apply its own civil code governing damage claims between private parties, which might lead to differences in enforcement in the relevant states.
III. German Law: Providing a powerful Toolkit
German law already provides a powerful toolkit, based both on substantive law in the German Civil Code (BGB) and on procedural law in the German Civil Procedure Code (ZPO). Essentially, a party affected by the above-described avoidance tactics has three options before a German court: (1) applying for injunctive relief under Sec. 826, 1004(1) Sentence 2 BGB analog, (2) seeking declaratory relief under Sec. 1032(2) ZPO, and (3) seeking damages. In view of the authors, these tools are sufficient to effectively protect affected parties in these scenarios, rendering the introduction of anti-(anti-) suit injunctions in the German legal system unnecessary.
1. Injunctive Relief under Sec. 826, 1004(1) Sentence 2 BGB analog
a) Background
First, it is important to note that the German legal system, whether in substantive or procedural law, generally does not recognize the technical term of anti-(anti-) suit injunctions or anti‑enforcement injunctions.[6] There is a general reluctance of German courts to issue such injunctions, irrespective of the exact legal basis on which such injunction may be based.[7] The reason for this is that under German law, there is no “right not be sued abroad”, i.e. in a non-competent forum or court outside of Germany. Further, the jurisdiction of the German courts is clearly defined and limited; German judges do not possess the power to issue discretionary decisions based on fairness (Ermessensentscheidungen nach Billigkeit).[8] However, in view of the authors, anti-(anti-) suit injunctions or anti‑enforcement injunctions issued by a German court inspired by the Anglo-American model are not necessary for a party to effectively defend itself against unjust proceedings or judgments outside of Germany. Instead, affected parties can apply for injunctive relief under Sec. 826, 1004(1) Sentence 2 BGB.
b) Substantive Basis: Sec. 826, 1004(1) Sentence 2 BGB analog
Sec. 826 BGB can form the substantive basis for injunctive relief against a Russian (“sanctioned”) party which initiated proceedings based on Art. 248.1 Russian Arbitration Procedure Code or which has already obtained a judgment from such proceedings. In fact, the injunctive relief comes somewhat close to what is considered an anti-suit injunction in Anglo‑American legal systems.
In general, Sec. 826 BGB provides relief by way of a tort claim in case there is an intentional damage inflicted in a manner offending common decency (vorsätzliche sittenwidrige Schädigung).[9] Although the intended relief provided in the wording of Sec. 826 BGB is compensation for damages in accordance with Sec. 249 et seq. BGB, it is widely acknowledged a person threatened by intentional damage may also file for injunctive relief in accordance with Sec. 826, 1004(1) Sentence 2 BGB analog.[10]
The requirements for a tort claim under Sec. 826 BGB are rather high. First, the opponent must inflict a damage, which is any adverse effect on the financial position of the other party or the impairment of a recognized interest.[11] Second, the act inflicting the damage must be immoral (i.e. offending common decency, (sittenwidrig)). According to the long‑standing definition established by the German Reichsgericht, a conduct is immoral when it goes against the of decency among all fair and just thinkers.[12] In addition, the 4th Senate of the German Federal Court of Justice requires a particular reprehensibility (Verwerflichkeit) of the conduct, which must be present in relation to the specific injured party. Reprehensibility may result from the objective pursued, the means used, the attitude revealed, or the consequences incurred.[13] Third, the party must act intentionally regarding the fact that the act causes harm to another person. It is required that intent refers to the facts giving rise to immorality, but not to immorality itself.[14]
What is crucial for the sanctions‑context is that Sec. 826 BGB also applies to damages inflicted based on procedural (immoral) conduct. In this regard, Sec. 826 BGB has played out already before the sanctions-context in different scenarios, for example in case of the immoral obtaining of a judgment (sittenwidrige Titelerschleichung). This is the case when a party has brought about either the decision itself or at least the entry into force of the decision in a manner offending common decency, for example by fraud or coercion.[15] In this case, the aggrieved party may apply to a state court to refrain from enforcing the decision under Sec. 826 BGB.[16] The same is true when a party tries to enforce a judgment that has not been obtained fraudulently but recognized as untenable and there are special circumstances making the exploitation of such a judgment appear immoral.[17] In all these cases, the legal validity of the judgment (Rechtskraft) may be exceptionally set aside. In this context, Sec. 826 BGB does not function as a damage claim but as a claim for injunctive relief.
Lastly, in case the initiating of a claim outside of Germany fulfills the requirements of Sec. 826 BGB, it has been recognized that a party may seek injunctive relief by way of an analogous application of Sec. 826, 1004(1) Sentence 2 BGB.[18] Thus, by way of invoking Sec. 826, 1004(1) Sentence 2 BGB, a party can defend itself against an unlawful act of a party who exploits a judicial measure in his favor, in an unlawful immoral manner of damage so that the party suffers damage by the other party obtaining an unlawful judgment or conducting an unlawful procedure.
Here, the damage inflicting conduct offending common decency would be applying for an anti‑arbitration injunction under Art. 248.2 Russian Arbitration Procedure Code before a Russian state court, knowing that the procedure before the state court will not be in accordance with the rule of law and will be detrimental for the opposing party (not the ignorance and violation of the arbitration agreement). Thus, the immoral conduct is using a supposed legal protection that has nothing to do with the rule of law.
It follows from the above analysis that what Anglo-American legal systems understand as anti-suit and anti-enforcement injunction is possible in German law by means of Sec. 826, 1004(1) Sentence 2 BGB on the substantive law level. The application to be submitted by a party in front of the German Court could be:
“To order the respondent to refrain from pursuing the state court proceedings in Russia and, in case there is already a rendered judgment, to refrain from enforcing this judgment against the claimant.”
Further, it is advisable to apply for a corresponding warning in accordance with Sec. 890(2) ZPO, namely that in case of a violation of the stipulated obligation, the court will impose on the defendant for each count of the violation, upon the creditor filing a corresponding petition, a coercive fine and, for the case that such payment cannot be obtained, to coercive detention or coercive detention of up to six (6) months, Sec. 890(1) ZPO.
c) Procedural Enforcement
In general, there are two ways to procedurally enforce the injunctive relief: by way of main proceedings (Hauptsacheverfahren) or via preliminary injunction under Sec. 935 ZPO.[19] With regards to the main proceedings, it would be an action for performance in the sense of a preliminary injunction (allgemeine Leistungsklage). However, these proceedings tend to be lengthy. A faster way would be applying for a preliminary injunction under Sec. 935 ZPO (injunction regarding the subject matter of the litigation). An advantage here is that the facts giving rise to a tort claim under Sec. 826 BGB only need to be demonstrated to the satisfaction of the court (Glaubhaftmachung), Sec 935, 936, 920(2), 294 ZPO, which is a lower burden compared to the general standard of proof during the main proceedings. In particular, for the sake of introducing evidence, it is also permitted to make a statutory declaration in lieu of an oath (eidestattliche Versicherung). Additionally, the court may grant an injunction on an ex parte basis.
d) Analysis
In sum, the German legal system does not need anti-suit injunctions as it already provides a useful toolkit in this context, injunctive relief by way of Sec. 826, 1004(1) Sentence 2 BGB analog. An important difference to anti-suit injunctions would be that a tort claim under Sec. 826 BGB is initiated to bind another party, whereas injunctions are intended to bind other courts or tribunals.
All in all, the BGB provides a practical and well-defined framework, outlining a clear path for navigating such legal matters in Germany: The authors believe that, despite the high legal threshold, there is a credible argument that a Russian party initiating proceedings under Article 248.1 of the Russian Arbitration Procedure Code – and thereby seeking legal protection through biased means that do not adhere to the rule of law, constitutes an intentional immoral conduct. This especially applies to abusive practices where a Russian party not designated on any EU sanctions list initiates proceedings under Article 248.1 of the Russian Arbitration Procedure Code under the pretext of being subject to restrictions of Article 5n of EU-Sanctions Regulation on the provision of legal advisory services allegedly restricting its access to legal remedies within the EU, which is clearly not the case. As such, it is not unlikely that German courts will find that such behavior fulfills the requirements of Sec. 826 BGB and issue injunctive relief on that basis.
2. Declaratory Relief under Sec. 1032(2) ZPO
a) Background
Another tool provided for in the German Civil Procedural Code is the declaratory relief under Sec. 1032(2) ZPO.[20] This provision is an addition to the UNCITRAL Model Law and serves as a unique mechanism within the German legal system, setting it apart from other jurisdictions.[21] According to the intent of the German legislator, the declaratory relief should precede the arbitration proceedings, safeguarding a due clarification of the question whether arbitration is admissible between the parties at an early stage of the dispute.[22] Under the provision, parties may apply for the determination of the (in‑)admissibility of arbitral proceedings until the arbitral tribunal is constituted. Upon application, the court will examine two questions: whether the arbitration agreement is valid and whether the dispute at hand is subject to it.[23]
b) Requirements
Relief under Sec. 1032(2) ZPO is extraterritorial, meaning that declaratory relief can be sought even if the arbitral seat is outside of Germany. This can be derived from Sec. 1025(2) ZPO.[24] From its mere wording, it may seem that Sec. 1025(2) in conjunction with Sec. 1032(2) ZPO stipulates a “worldwide and universal jurisdiction”. However, most scholars and courts agree that the international jurisdiction must be limited, requiring at least some nexus of the applying party to Germany to establish jurisdiction.[25] In that sense, it can be sufficient that the party is domiciled in Germany and that its financial situation and assets in its registered seat in Germany are affected by the Russian state court proceedings.[26] On the contrary, an application will be denied when the applicant has no assets in Germany and there is no indication that this circumstance will change in the future.[27] In that regard, future cases will show which circumstances are sufficient to establish international jurisdiction over an applicant.
Application for declaratory relief must be directly filed with a German higher regional court (Oberlandesgericht). In case the arbitral seat is in Germany, the court in the district of the seat of the arbitration will be competent, Sec. 1025(1), 1026, 1062(1) No. 2 ZPO. In case the arbitration is seated outside of Germany, it will be the Higher Regional Court in the district of which the party opposing the application has their seat or place of abode, or in which assets of the party opposing the application are located or in which the object being laid claim to by the request for arbitral proceedings or affected by the measure is located; or, by way of alternative jurisdiction (hilfsweise Zuständigkeit), the Higher Regional Court of Berlin (Kammergericht), Sec. 1025(2), 1026, 1062(2) ZPO.
In general, all parties who may be affected by the arbitration proceedings have the right to file an application.[28] A special interest in a declaratory judgment is not required (Feststellungsinteresse). The applicant only needs a general legal interest worthy of protection in determining the admissibility of arbitral proceedings (allgemeines Rechtsschutzinteresse). In particular, the application is already admissible prior to the formal initiation of the arbitral proceedings.[29]
Yet, the timeframe in which application can be filed is limited. Relief under Sec. 1032(2) ZPO can be sought only until the constitution of the arbitral tribunal. A later challenge or change of arbitrators is irrelevant.[30] The deciding point in time is the day the application of the party seeking relief arrives at the court. Until this day, the arbitral tribunal must not have been constituted.[31]
In sum, due to its extraterritoriality, Sec. 1032(2) ZPO is particularly relevant for parties lacking sufficient nexus to seek a common law anti-suit injunction, offering them an alternative route through the German legal system. Additionally, it complements the tools available for the cases at hand.
c) Recent Decisions of the Higher Regional Court Berlin (Kammergericht)
In fact, the Higher Regional Court Berlin (Kammergericht) granted declaratory relief in accordance with Sec. 1032(2) ZPO to EU entities facing anti-arbitration injunctions issued by Russian state courts on the basis of Art. 248.1, 248.2 Russian Arbitration Procedure Code in two recent cases.[32] In the 2023 decision, the court clarified that arbitration may be initiated even though the defendant is sanctioned under EU law, stating that Russian entities cannot unilaterally withdraw from arbitration agreements by referring to Russian national law. Instead, even despite sanctions, it must be ensured that a party which concluded an arbitration agreement with a Russian entity retains access to arbitral proceedings. During the proceedings, the Higher Regional Court had faced difficulties to serve the Russian party with process in accordance with Hague Convention. Several attempts to serve process were denied both by the Russian court as well as by the Russian Ministry of Justice. The Higher Regional Court Berlin finally conducted service of process via public service under Sec. 185 No. 3, 188 ZPO (öffentliche Zustellung). The public service was effected by posting a notice on the court’s notice board for one month, Sec. 186(2), 188 Sentence 1 ZPO.
The decisions show the current trend that EU member states increasingly defend themselves against unlawful behavior of other states.
d) Analysis: Determination of Admissibility of Arbitral Proceedings (and then what?)
These cases and the current situation raise one fundamental question: What practical effect does a declaratory judgment under Sec. 1032(2) ZPO have? Does it have a purely factual effect or does it have any more far-reaching legal effects? Can it affect the enforcement of a judgment obtained in Russia under unlawful conditions within the EU?
One can easily conclude that the original purpose of Sec. 1032(2) ZPO is not actually tailored to these cases. What is certain, however, is that the declaratory relief is binding for other German courts. As an example, it has prejudicial effect for annulment proceedings before German courts. Further, it facilitates the arbitration defense under Sec. 1032(1) ZPO when case a party initiates litigation before another German court.[33]
In view of the authors, a declaratory judgment under Sec. 1032(2) ZPO could serve as a sword against the enforcement of the Russian state court judgment in another state. The court at the place of enforcement might deny enforcement due to the opposing judgment of the German court determining that arbitral proceedings are admissible. At a minimum, the German court’s decision, particularly as issued by a higher regional court, could have a factual impact. Since decisions under Sec. 1032(2) ZPO are a fairly new phenomenon, in this regard, it remains to be seen how courts outside Germany respond to those declaratory judgments by German courts.
In light of its limited legal effect and the fact that it can only be invoked until the arbitral tribunal has been constituted, declaratory relief is a less useful tool compared to injunctive relief under Sec. 826, 1004(1) Sentence 2 BGB analog.
3. Damage Claims
Lastly, an EU-party may seek damages before a German court, either under Art. 11a EU‑Sanctions Regulation or, provided that the arbitration agreement is subject to German law, under Sec. 280(1) BGB.
Article 11a EU‑Sanctions Regulation refers to the fact that a sanctioned party initiates proceedings before a Russian national court knowing that the court proceeding does not adhere to the rule of law and does not provide effective access to justice to the EU party. In accordance with Article 11a of the Regulation, a party may recover any damages, including legal costs, incurred by the court proceedings outside the EU. This might well include inappropriately high fines issued in conjunction with anti-arbitration injunctions by a Russian court.
A damage claim under Sec. 280(1) BGB, on the other hand, can be based on the fact that the Russian party violates the arbitration agreement.[34] An action brought before a state court in disregard of a valid arbitration agreement covering the dispute arbitration agreement will be generally considered unlawful.[35] In this regard, a declaratory judgment under Sec. 1032(2) ZPO could also have prejudicial effects with regards to the question of whether there is a valid arbitration agreement between the parties. Damages may, in accordance with Sec. 249 et seq. BGB, include all costs incurred by the unlawful foreign proceeding, including the imposed fines. Continuing this thought, it might even be possible under German law that when the state court litigation is still pending, the party seeking to initiate arbitration might force the other party to withdraw its claim under Sec. 280(1), 249(1) BGB, which constitutes the principle of restoration of the status quo ante (Naturalrestitution), which, with regards to its effect, would come close to an anti‑suit injunction.
IV. Conclusion
The foregoing analysis shows that the German legal system as such, with its comprehensive array of procedural and substantive legal tools, does not require anti-(anti)-suit or anti-enforcement injunctions to effectively protect entities’ rights in sanctions-related disputes. Instead, it offers robust mechanisms that German courts can utilize to uphold these rights without resorting to such injunctions. Instead, the German legal system provides sufficient instruments courts may resort to in order to safeguard entities’ rights in sanction related disputes.
While declaratory relief under Sec. 1032(2) ZPO might be a unique tool to determine admissibility of arbitral proceedings, it is limited by its applicability only up until the constitution of the arbitral tribunal. Moreover, it remains less effective than injunctive relief due to its restricted flexibility and limited legal reach. In contrast, injunctive relief grounded in tort claims under Sec. 826 and Sec. 1004(1) Sentence 2 BGB provides a more powerful and adaptable tool for countering avoidance tactics by Russian parties, offering German courts a stronger and more comprehensive means of addressing such challenges.
[1] Similar considerations apply for non-EU entities where jurisdiction can be established in Germany.
[2] See Federal Law of 08.06.2020 No. 171-ФЗ “On Introducing Changes to the Arbitration Procedure Code of the Russian Federation (Protected) for the Protection of Rights of Individual and Legal Personalities State (Interstate) Institution of Foreign State or State Association and (or) Union”, See https://www.acerislaw.com/wp-content/uploads/2020/07/Anti-Russian-Sanctions-Law-English.pdf.
[3] See UniCredit Bank GmbH v RusChemAlliance LLC (RCA), judgment of 5 August 2023; Siemens Mobility v JSC Russian Railways, judgment of 18 October 2023 (Case No. 305-ES23-19401); Gazprom v JSC Naftogaz, judgment of 22 January 2024 (Case No. A56-124094/2023); Gazprom v Net4Gas, judgment of 6 March 2024 (Case No. A56-9516/2024); Deutsche Bank AG v. RusChemAlliance (RCA), judgment of 16 October 2024 (Case No. A56-90971/2024).
[4] General Court of the European Union Case Nos. T-797/22; T-798/22; T-828/22, Press Release of the General Court of 2 October 2024.
[5] Council Regulation (EU) 2024/1745 of 24 June 2024 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, See https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401745.
[6] Higher Regional Court München (Oberlandesgericht), Judgment of 12 December 2019 – 6 U 5042/19, GRUR 2020, 379 para. 54; Ehlgen in GRUR 2022, 537.
[7] M. Stürner in RabelsZ Bd. 71(2007), p. 601.
[8] R. Geminer in NJW 1991, 3072, 3074; Higher Regional Court Düsseldorf (Oberlandesgericht), Judgment of 17 June 2024 – 26 W 7/24 –, juris para. 34.
[9] Section 826 BGB reads: „A person who, in a manner offending common decency, intentionally inflicts damage on another person is liable to the other person to provide compensation for the damage. “
[10] Higher Regional Court of Saarbrücken (Saarländisches Oberlandesgericht), Judgment of 7 January 1987 – 1 U 165/84 –, juris. Section 1004(1) BGB reads: „If the ownership is interfered with by means other than removal or retention of possession, the owner may demand that the disturber remove the interference. If there is the concern that further interferences will ensue, the owner may seek a prohibitory injunction.”
[11] German Federal Court of Justice (Bundesgerichtshof), Judgment of 19 July 2004 – II ZR 402/02 –, juris.
[12] „Anstandsgefühl aller billig und gerecht Denkenden”, Reichsgericht, Judgment of 11 April 1901, RGZ 48, 114 (124).
[13] German Federal Court of Justice (Bundesgerichtshof), Judgment of 28 June 2016 – VI ZR 536/15 –, juris.
[14] German Federal Court of Justice (Bundesgerichtshof), Judgment of 21 April 2009 – VI ZR 304/07 –, juris.
[15] Braun/Heiß in Münchener Kommentar zur ZPO, 6th edition 2020, preliminary remarks on Sec. 578 ZPO, para. 12.
[16] German Federal Court of Justice (Bundesgerichtshof), Judgment of 25 May 1959 – II ZR 231/58 –, juris.
[17] German Federal Court of Justice (Bundesgerichtshof), Judgment of 21 June 1951 – III ZR 210/50 –, juris.
[18] Reichsgericht, Judgment of 3 March 1938, RGZ 157, 136, 140. M. Stürner in RabelsZ Bd. 71(2007), p. 602; Schack in: Internationales Zivilverfahrensrecht, 7th edition 2019, p. 323, Higher Regional Court Düsseldorf (Oberlandesgericht), Judgment of 17 June 2024 – 26 W 7/24 –, juris; Higher Regional Court Düsseldorf (Oberlandesgericht), Judgment of 18 Juli 1997 – 22 U 271/96, NJW-RR 1998, 283, 284.
[19] Section 935 ZPO reads: „Injunctions regarding the subject matter of the litigation are an available remedy given the concern that a change of the status quo might frustrate the realisation of the right enjoyed by a party, or might make its realisation significantly more difficult.”
[20] Sec. 1032(2) ZPO reads: „Until the arbitral tribunal has been formed, a request may be filed with the court to have it determine the admissibility or inadmissibility of arbitral proceedings.”
[21] See BT Drs 13/5274, p. 38.
[22] German Federal Court of Justice (Bundesgerichtshof), Decision of 27 July 2023 – I ZB 43/22 –, juris para. 77; Münch in: Münchener Kommentar zur ZPO, 6th edition 2022, Sec. 1032 para. 1.
[23] German Federal Court of Justice (Bundesgerichtshof), Decision of 19 July 2012 – III ZB 66/11, SchiedsVZ 2012, 281.
[24] Sec 1025(2) ZPO reads: „The provisions of sections 1032, 1033 and 1050 are to be applied also in those cases in which the place of arbitration is located abroad or has not yet been determined.”
[25] Münch in: Münchener Kommentar zur ZPO, 6th edition 2022, Sec. 1025 para. 21; Gerl in: SchiedsVZ 2024, 218, 222; Berlin (Kammergericht), Decision of 10 August 2006, 20 Sch 7/04 –, juris para. 97.
[26] Berlin (Kammergericht), Decision of 1 June 2023, 12 SchH 5/22 –, juris para. 22.
[27] Berlin (Kammergericht), Decision of 10 August 2006, 20 Sch 7/04 –, juris para. 96.
[28] Higher Regional Court Saarbrücken (Oberlandesgericht), Decision of 29 May 2008, Sch 2/08, SchiedsVZ 2008, 313, 315.
[29] Higher Regional Court Frankfurt am Main (Oberlandesgericht), Decision of 10 June 2014, SchiedsVZ 2015, 47.
[30] Voit in: Musielak/Voit ZPO, 21st ed. 2024, Sec. 1032 para. 10; Münch in: Münchener Kommentar zur ZPO, 6th edition 2022, Sec. 1032 para. 30.
[31] Voit in: Musielak/Voit ZPO, 21st ed. 2024, Sec. 1032 para. 10.
[32] Higher Regional Court Berlin (Kammergericht), Decision of 1 June 2023, 12 SchH 5/22 –, juris. The second decision dated 3 September 2024 decision is still unpublished.
[33] Voit in: Musielak/Voit ZPO, 21st ed. 2024, Sec. 1032 para. 13.
[34] That the violation of an arbitration agreement may lead to a claim under Sec. 280(1) BGB is recognized by most scholars, although the German Federal Court of Justice has not yet ruled on the issue. See however German Federal Court of Justice (Bundesgerichtshof), Judgment of 17 October 2019 – III ZR 42/19 – juris granting damages under Sec. 280(1) BGB regarding agreements as to the choice of venue (Sec. 38 ZPO), which, in the view of most scholars, can be applied to arbitration agreements. See for example: E. Peiffer and M. Weiler in: RIW 2020, 641, 648 et seq; J. Antomo in: EuZW 2020, 143, 150; M. Oehm and C. Jung-Arras in: BakerMcKenzie Kompass, Blogpost dated 11 November 2019, available at: https://www.bakermckenzie-kompass.de/2019/11/11/gerichtsstandsvereinbarung-schadensersatz-verlangen-wenn-am-falschen-gerichtsstand-geklagt-wird/.
[35] E. Peiffer and M. Weiler in: RIW 2020, 641, 648 et seq.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, the leaders or members of the firm’s Judgment and Arbitral Award Enforcement, International Arbitration, or International Trade practice groups, or the authors in Germany:
Frankfurt:
Dr. Finn Zeidler (+49 69 247 411 530, [email protected])
Dr. Annekathrin Schmoll (+49 69 247 411 533, [email protected])
Munich:
Dr. Nikita Malevanny (+49 89 189 33 224, [email protected])
*Charlotte Popp, a law clerk in the Frankfurt office, is not yet admitted to practice law.
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