OGH on the duty to cooperate in the constitution of the arbitral tribunal

Sept 15, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (OGH) has dealt with the scope of the obligation to cooperate in the constitution of an arbitral tribunal in an association.

In the case at hand, the plaintiff wanted to be reimbursed by her association for training costs. In accordance to Section 8 (1) of the Austrian Associations Act 2002 (Vereinsgesetz 2002, VerG), a mandatory arbitral tribunal is responsible for disputes within an association. The path to the ordinary court is only open after six months from the appeal to the arbitral tribunal.

According to the statutes of the association, the arbitral tribunal is formed in such a way that both parties to the dispute nominate two arbitrators each to the Board of Directors of the association, and then the four elect a fifth member to chair the Board. This regulation corresponds approximately to Section 15 of the model statutes of the Federal Ministry of the Interior (Bundesministeriums für Inneres).

The plaintiff nominated two arbitrators and one substitute member, the Board thereupon its two arbitrators. The plaintiff's arbitrators then informed the Board that they were not available. The Board of Directors of the association did not take any further steps thereafter. Subsequently, the constitution never took place.

After the expiry of the six-month period, the plaintiff brought her complaint before the court.

The defendant association disputed the admissibility of the ordinary legal proceedings. The plaintiff had not complied with the duty to participate in the constitution of the arbitral tribunal. The arbitrators nominated by it did not agree to their appointment or were inactive, which is why the deadline was not triggered.

The OGH took a different view: The plaintiff had indeed contributed a reasonable share, since she nominated both two members and one substitute member. The conduct of "her" arbitrators cannot be attributed to her to her detriment, because they should be as unbiased as possible and are not unilateral representatives of a party to the dispute. Moreover, a party does not "owe" a "success" in constituting, but a mere participation in it.

Moreover, in the present case, according to the statute, it would have been up to the Board to ensure the formal organization of the establishment of the arbitral tribunal and to network the nominated members among themselves.

The ordinary legal process was therefore permissible.

OGH 1 Ob 121/21g (21.07.2021)