Austrian OGH: Minority Shareholders Classified as Consumers

Feb 12, 2026 Benn-Ibler Rechtsanwälte

The applicants in the case at hand requested that a judge appoint an arbitrator, relying on the arbitration clause found in their general partnership agreement. This request arose from a disagreement among shareholders about whether a particular shareholders’ resolution was valid. Since the shareholders could not reach a consensus on choosing an arbitrator, even after starting arbitration proceedings, the issue was escalated to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH).

The OGH determined that it lacked jurisdiction in this matter. Pursuant to the Austrian Code of Civil Procedure (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), the OGH is authorised to appoint an arbitrator only if all participants in the arbitration are entrepreneurs. Should a consumer be party to the proceedings, jurisdiction is vested in a regional court; in Vienna, this responsibility falls to the Vienna Commercial Court (hereinafter Handelsgericht Wien).

In this matter, the key issue concerned the legal classification of shareholder status for a Liechtenstein family foundation. The OGH affirmed that foreign legal entities are subject to evaluation under Austrian consumer protection law. The determining criterion is whether these entities genuinely conduct business activities.

Although the foundation is involved in the general partnership, it only possesses a minority interest and lacks management power or representation. Consequently, it does not have any real influence on the company‘s operations. Established case law views this form of involvement as a capital investment, rather than an entrepreneurial activity. For this reason, the foundation should be considered a consumer.

Since the articles of association lack a specific provision concerning the location of the arbitral tribunal, the statutory default jurisdiction is applicable. Pursuant to Section 617(8) of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO), jurisdiction in this matter resides with the Handelsgericht Wien.

18 ONc 3/25y (12 January 2026)