OGH on the analogous applicability of § 1 (5) BWG and § 51 BörseG to contracts for differences concluded between companies in the area of concealed forward transactions

Oct 30, 2020 Benn-Ibler Rechtsanwälte

The defendant refused to disburse the profit from speculative commodity forwards, arguing that these were transactions for differences that had created a (non-enforceable) “natural obligation” under Austrian law. The plaintiff thereupon sought to apply § 1 (5) of the Austrian Banking Act (Bankwesengesetz, BWG) or § 51 of the Stock Exchange Act 2018 (Börsegesetz 2018, BörseG) analogously.

The background to the proceedings was the plaintiff's investment strategy, for the implementation of which they concluded a framework agreement with the defendant non-ferrous metal trader on the settlement of commodity forwards.

No real commodity deliveries were intended in these commodity forwards. Rather, the plaintiff bet on profits resulting from the difference in exchange rates or prices between the date of the transaction and the theoretical settlement date.

The plaintiff demanded payment of the netted profit from the commodity forwards that the defendant had arranged for her. The defendant refused. As, in their view, profits from contracts for differences represent gambling and betting debts in the sense of § 1271 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) and are therefore transactions for differences that had created a (non-enforceable) “natural obligation” under Austrian law.

The OGH examined whether § 1 (5) BWG and § 51 BörseG are applicable analogously. These provisions preclude the objection that the claim is based on a transaction for differences in value in the case of legal disputes arising from banking or stock exchange transactions.

The OGH pointed out that the relevant provisions of the BWG and the BörseG are intended to protect the investor and therefore - in contrast to other transactions for differences that create a (non-enforceable) “natural obligation” under Austrian law, from gambling or betting - ensure the enforceability of payout claims. This is linked to a strict supervisory regime as protection against abuses.

In the opinion of the OGH, however, the parties had chosen a bypass construction for the intended concealed commodity forwards. The business activity of the defendants was not typically focused on the investment of client funds. The OGH thus rejected the conclusion by analogy.

OGH 4 Ob 80/20y (2 July 2020)