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The European, Middle Eastern and African Arbitration Review 2016

Germany

The arbitration law in Germany is consolidated in Book 10 of the German Code of Civil Procedure (ZPO). Since its reform in 1998 (the 1998 Reform), its provisions (sections 1025 to 1066), with a few exceptions, are based on the 1985 UNCITRAL Model Law (the Model Law). Three of these exceptions shall be highlighted here.

First, the ZPO provides for a relaxed written form requirement for the conclusion of arbitration agreements, allowing commercial parties to conclude an arbitration agreement if one party is simply non-responsive to a commercial letter of confirmation in certain circumstances defined by German case law.1

Second, the ZPO has different sets of rules for the recognition and enforcement of domestic and foreign arbitral awards. Domestic arbitral awards are enforced in accordance with section 1060 ZPO (specifying separate grounds for refusal in section 1059(2) ZPO). Regarding the recognition and enforcement of foreign arbitral awards, section 1061 ZPO explicitly and exhaustively refers to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the New York Convention). The German Arbitration Law is therefore readily accessible to the international arbitration practitioner familiar with the Model Law and the New York Convention.

Third, the German Arbitration Law allows parties to seek a declaratory judgment on the validity of the arbitration agreement prior to the constitution of the arbitral tribunal (section 1032(2) ZPO). While this provides an opportunity to clarify issues relating to the competence of the tribunal at an early stage, it does not deprive the party of the right to immediately start arbitration proceedings which may be initiated also while proceedings under section 1032(2) ZPO are underway (section 1032(3) ZPO).

Behind this backdrop, and coupled with a number of high-profile cases in recent years, decisions of the German Higher Regional Courts and the German Federal Court of Justice (FCJ) on German Arbitration Law are increasingly reported in the Digest of Case Law on the Model Law,2 frequently reviewed outside Germany by scholars, and more recently even referred to by foreign courts when applying and interpreting national law in pari materia.3

The past year has seen a set of noteworthy decisions in Germany relating to both commercial and investment arbitration cases. Some highlight the few idiosyncrasies of the German Arbitration Law (especially in setting-aside proceedings), while others deal with the application and interpretation of the New York Convention or the relationship between EU law and bilateral investment treaties (BITs). Arbitrations in sports-related disputes, especially the particularities of the Court of Arbitration for Sports (CAS), have again been the subject of a controversial decision and subsequent discussion in the wider international arbitration community. On the whole, the decisions in the past year have once again underscored the arbitration and enforcement-friendly approach taken by German courts and their awareness of the particularities of the arbitral process.

Validity of arbitration clauses in sports-related arbitrations

Higher Regional Court of Munich, 15 January 2015, U 1110/14 Kart

At the beginning of 2015, the Higher Regional Court of Munich (the Munich Court) handed down a controversial decision on the validity of arbitration clauses concluded between athletes and their respective sporting associations. The dispute arose out of the two-year doping suspension of German five-time speed skating Olympic gold medallist Claudia Pechstein. The suspension had been imposed, in 2009, by the disciplinary commission of the International Skating Union (ISU) for alleged blood doping. The relevant blood sample was taken at the 2009 championships in Hamar, Norway. To participate in this competition, Ms Pechstein had to sign a registration form which contained a clause providing for CAS arbitration. In accordance with this clause, she appealed against the suspension to the CAS and later tried to have the award set aside by the Swiss Federal Court but was unsuccessful.

In late 2012, Ms Pechstein took to the German courts requesting a declaration that the suspension had been unlawful and claiming €3.5 million in damages from the ISU and the national speed skating association. The Regional Court of Munich (the Regional Court) dismissed all claims. With regard to the requested declaratory judgement, it held that, while the arbitration agreement was not validly concluded as Ms Pechstein had not entered into the agreement voluntarily, the claim was nonetheless inadmissible due to the res judicata effect of the binding CAS award. Conversely, the binding force of the CAS award did not render Ms Pechstein’s damage claims inadmissible, but since her claims were based on the alleged illegality of the doping suspension, these claims failed on the merits because the Regional Court saw itself barred from revisiting these issues.

Ms Pechstein appealed the decision (only with regard to the ISU) to the Munich Court, which came to a completely different result. In its decision of 15 January 2015, it affirmed its jurisdiction, reserving all other issues to its still pending judgment on the merits. After affirming its international jurisdiction to hear the case against the sole remaining Swiss respondent, it held that the arbitration clause was invalid because it violated mandatory provisions of German antitrust law. As mandatory provisions, pursuant to German private international law (article 34 of the Introductory Act to the Civil Code (EGBGB)), they apply irrespective of the law otherwise applicable to the arbitration or arbitration agreement.

Pursuant to section 19, paragraphs (1) and (4)(2), of the Act Against Restraints of Competition (GWB), in conjunction with section 134 of the German Civil Code, all contractual provisions different from those that would have most likely been concluded under competitive market conditions are null and void. The arbitration clause in the ISU’s registration form failed this test. The Munich Court concluded that the ISU, which describes itself on its website as ‘the exclusive international sport federation recognized by the International Olympic Committee (IOC) administering sports in the Branches of [...] Speed Skating’, has a monopoly in this field. While there are some other isolated competitions in speed skating, the Munich Court did not consider them equivalent for purposes of the German antitrust law. In order to participate in the ISU’s competitions, Ms Pechstein had to sign the registration form and the enclosed arbitration agreement. The Munich Court was, however, careful not to declare the arbitration clause invalid for the mere fact that athletes were obliged to sign it. It expressly recognised the benefits of having a single international tribunal in order to ensure uniformity and equality of opportunities for athletes. It therefore considered it likely that athletes would be willing to sign an arbitration agreement.

Yet, it took issue with the arbitration clause signed by Ms Pechstein because it provided for arbitration by the CAS. Similarly to the decision by the Regional Court in February 2014, it criticised that, pursuant to article R33 of the CAS Rules of Procedure, the arbitrators could only be appointed from a list of individuals selected by the International Council of Arbitration for Sport (ICAS). The ICAS is dominated by the IOC, international sports federations and the Association of National Olympic Committees (collectively, the Federations). Only four of the 20 ICAS members are appointed ‘with a view to safeguarding the interest of athletes’. Yet, also these four members are appointed by the 12 ICAS member appointed by the Federations. The remaining four members are appointed by the other 16 ICAS members and shall be chosen from among personalities independent of the bodies designating the other ICAS members. Furthermore, pursuant to article S14 of the 2004 ICAS/CAS statute,4 relevant for the case at hand, this distribution was also to be reflected ‘in principle’ in the list of CAS arbitrators which, like all decisions of the ICAS, was adopted by a simple majority.

Against this background, the Munich Court concluded that, due to the predominance of the Federations in the ICAS, there was a danger that the individuals on the CAS arbitrators list – largely or even completely – were closer to the Federations than to the athletes. It acknowledged that at times national federations or national Olympic committees sided with ‘their’ athletes against the other federations. Yet, it concluded that in principle athletes and the Federations had opposing positions and that, conversely, the interests of the Federations were typically aligned. It considered this to be a structural deficiency of the CAS systems, which failed to ensure equal rights of the parties in the constitution of the tribunal. This structural advantage, according to the Munich Court, is further aggravated by the fact that, in appeals proceedings, the chairman of the tribunal is appointed by the president of the Appeals Division (article R50 of the CAS Rules of Procedure). The president of the Appeals Division, in turn, is not appointed by the parties but by a simple majority of the Federations-dominated ICAS.

In the Munich Court’s opinion, the ISU had thus misused its dominant market position by forcing the claimant to sign a disadvantageous arbitration clause. The 1998 Reform had replaced a provision which invalidated arbitration clauses resulting from one party’s dominant position with a provision modifying the appointment procedure. Nonetheless, the Munich Court considered that, in line with the typically stricter sanctions in antitrust law, the arbitration clause was null and void.

In contrast to the Regional Court’s judgment of February 2014, which accepted the res judicata effect of the previous CAS award also in relation to Ms Pechstein’s damages claims, the Munich Court held that Ms Pechstein was not barred from bringing such claims in state courts. It did not see any contradictory behaviour in appealing the doping suspension at the CAS but bringing claims for damages in state courts. Any implied acceptance of the CAS jurisdiction by participating in the arbitration would be limited to the dispute in question. Moreover, according to the Munich Court, the ISU – particularly because it had misused its dominant market position to obtain Ms Pechstein’s signature under the arbitration clause – could not reasonably expect that Ms Pechsein would not bring other claims in state courts.

The Munich Court therefore affirmed its jurisdiction over the claimant’s damage claims. Moreover, it also declared that it would be free to revisit the merits of the case because the CAS award could not be recognised in Germany. A recognition of the award would be contrary to the German public order since it violated basic provisions of German antitrust law and deprived Ms Pechstein of her right under the German constitution of access to state courts and of the jurisdiction of her lawful judge. The Munich Court, however, did not go on to decide the merits of the case but reserved this to its final judgment.

Its decision on jurisdiction is currently on appeal at the FCJ. This decision is waited for with bated breath. Some commentators do not see any possibility for the FCJ to overturn the Munich Court’s decision.5 They expect the judgment to finally trigger a debate on the structural imbalances within sports arbitration.6 Other voices reiterate that the Munich Court itself had not questioned the system as such but ‘expressly acknowledged that there was indeed an irrefutable need to refer international sports disputes to a single sports (arbitration) tribunal’.7 Again, others find the judgment instructive for the current debate on investor-state dispute settlement. They argue that the Pechstein case demonstrates the limits of closed lists of arbitrators (predominantly) set up by one party to the dispute,8 which is nowadays also argued for to increase the consistency of awards in investment arbitration.

Higher Regional Court of Koblenz, 6 November 2014, 2 U 1560/13

Two months prior to the above decision of the Higher Regional Court of Munich, the Higher Regional Court of Koblenz (the Koblenz Court) also had to decide on the validity of a CAS arbitration clause. However, the constellation here was in many respects different.

The dispute arose over fees to be paid to a player’s agent for the transfer of a football player. The player’s agent was licensed by FIFA. According to the Code of Professional Conduct annexed to the FIFA Player’s Agent Regulation and formally accepted by the agent, the agent had to submit all disputes to the jurisdiction of FIFA which in turn could be appealed before the CAS.

The Koblenz Court affirmed that under German law, which the parties had implicitly chosen by not objecting to its application by the court of first instance (the Regional Court), a party could only validly dispose of its right of access to state courts and of the jurisdiction of its lawful judge if it submitted voluntarily to an arbitration agreement. However, contrary to the Regional Court, the Koblenz Court could not establish that the agent had submitted involuntarily to CAS arbitration. A submission is only involuntary if the party is forced to sign the arbitration agreement (eg, carry out a certain profession) or, as in the case of Ms Pechstein, to participate in relevant competitions. While the FIFA Players Agent’s Regulation generally requires a licence to act as an agent, it provides for certain exceptions, resulting in less than 50 per cent of player’s agents being licensed by FIFA. The Koblenz Court thus concluded that the agent did not have to obtain a licence and consequently freely accepted the jurisdiction of the CAS.

Contrary to the state courts in the Pechstein case, the Koblenz Court, in passing, dismissed arguments relating to the invalidity of the arbitration clause, holding that arguments as to deficiencies of the arbitral procedure must first be raised in the arbitration. Only if a tribunal fails to deal with these issues, once invoked, can these deficiencies be addressed in recognition and enforcement proceedings. In view of the Koblenz Court, a party must first exhaust the remedies provided within the FIFA and CAS system before taking the issue to the state courts.

Validity of arbitration clauses in intra-EU BITs

Higher Regional Court of Frankfurt, 18 December 2014, 26 Sch 3/13

In December 2014, the Higher Regional Court of Frankfurt (the Frankfurt Court) rendered a decision concerning the validity of arbitration clauses in intra-EU bilateral investment treaties (BITs). This decision is currently on appeal to the FCJ who might put that question to the European Court of Justice (ECJ) for a preliminary ruling.

The Frankfurt Court was called upon to decide on an application of the Slovak Republic under section 1059 ZPO for setting aside the Final Award of an UNCITRAL ad hoc tribunal (the Tribunal) in an investment dispute brought by the Dutch insurance group Achmea BV (formerly Eureko) against measures of the Slovak Republic in the health insurance sector. The Slovak Republic challenged the award, arguing that the Tribunal lacked jurisdiction because the arbitration clause in the Netherlands-Slovak Republic BIT was invalid due to its incompatibility with EU law, particularly articles 344, 267 and 18 TFEU. Largely for the same reasons, in view of the Slovak Republic, the Final Award was also to be set aside because its recognition and enforcement would violate the ordre public. In addition, the Slovak Republic contended that the dispute decided was not covered by the arbitration agreement because Achmea’s investment was made illegally.

The Frankfurt Court had already affirmed the validity of the arbitration clause in a mid-2012 decision when the Slovak Republic tried to set aside the partial award on jurisdiction. However, before the appeal against this decision was decided, the Tribunal had delivered its Final Award. In its decision on this previously disputed procedural constellation in April 2014, the FCJ concluded that the Final Award rendered the decision of the Frankfurt Court on the partial award moot for lack of continued legitimate interest in the proceedings.9 In its new December 2014 decision, the Frankfurt Court confirmed and expanded its previous decision, rejecting all of the Slovak Republic’s arguments.

It first addressed the Slovak Republic’s argument that the arbitration clause in the BIT violates article 344 TFEU, which obliges EU member states ‘not to submit a dispute concerning the interpretation or application of the Treaties [ie, TEU and TFEU] to any method of settlement other than those provided for therein’. The Frankfurt Court flatly rejected this argument, pointing out that the treaties lacked a mechanism to settle disputes between member states and individuals. There was also no violation of article 344 TFEU when read in conjunction with article 19(1) TEU since the latter does not protect the competence of the ECJ in a general fashion.10

As regards the Tribunal’s inability to request a preliminary ruling from the ECJ pursuant to article 267 TFEU, the Frankfurt Court considered the situation comparable to the one of tribunals in commercial arbitrations. Invoking the ECJ’s jurisprudence on commercial arbitrations, it reaffirmed that, although arbitral tribunals cannot ask the ECJ for a preliminary ruling, arbitration clauses do not violate article 267 TFEU.

The Frankfurt Court also rejected the Slovak Republic’s argument that intra-EU BITs violate article 18 TFEU because they discriminate against investors from other EU member states. It argued that, since the arbitration agreement does not violate the above provisions of EU law, nothing would militate against extending the arbitration clause also to investors from other EU member states (instead of abrogating the otherwise valid arbitration agreement).

Next, the Frankfurt Court went on to also dismiss the Slovak Republic’s ordre public arguments based on article 267 TFEU for the same reasons as above. There was also no conflict with substantive provisions of EU law in this regard, in particular no violation of the freedom of capital movements, since the Tribunal had dismissed Achmea’s claim for violation of the BIT’s free transfer of payments provision.

Finally, the Frankfurt Court turned to the objections not related to EU law, particularly the Slovak Republic’s allegation that the dispute was not covered by the arbitration clause because Achmea’s investment was made illegally. The Frankfurt Court saw no reason to limit the scope of the arbitration agreement to legal investments. Any illegality could only be relevant with regard to the merits of the claim but would not affect the jurisdiction of the tribunal deciding this matter.

The Frankfurt Court considered that all questions related to EU law had been sufficiently answered in the jurisprudence of the ECJ and therefore, relying on the acte claire doctrine, refrained from requesting a preliminary ruling by the ECJ. It remains to be seen whether the FCJ, which has currently ceased with the appeal, will uphold this decision. Even more interesting will be whether the FCJ will provide the ECJ with an opportunity to take a position on the question of intra-EU BITs by requesting a preliminary ruling.

Challenges and setting aside

Federal Court of Justice, 11 December 2014, II ZB 23/14

The FCJ recently handed down a decision rejecting an appeal against the setting aside decision of the Higher Regional Court Munich (the Munich Court).11 The FCJ affirmed that an arbitral award can be set aside if one of the arbitrators was successfully challenged in the courts following the award and despite the award having been rendered by a unanimous decision of a three-member arbitral tribunal.

 The applicant in the proceedings before the Munich Court had challenged the chairperson (appointed by the two co-arbitrators) in the arbitration proceedings and raised doubts about her impartiality and independence. The arbitral tribunal unanimously dismissed the challenge, continued with the arbitration and preceded to the final award. While the arbitral proceedings were still ongoing, the applicant challenged the appointment of the chairperson before the German courts in accordance with section 1037(3) ZPO. Only after the arbitral tribunal, including the challenged chairperson, had rendered their award, the Munich Court decided that the challenge was indeed justified and set aside the award in accordance with section 1059(2)(1)(d) ZPO.

The respondent in the court proceedings appealed to the FCJ. The FCJ rejected the appeal and affirmed the decision of the Munich Court. In its reasons, it emphasised that the sheer possibility that the arbitral tribunal may have decided differently without the participation of the challenged arbitrator or, positively put, with the participation of another arbitrator, is sufficient to set-aside the award.

The FCJ based its decision on section 1059(2)(1)(d) ZPO. According to this provision, an arbitral award may be set aside if the composition of the tribunal was not in accordance with either the agreement of the parties or with the rules relating to arbitration proceedings in the ZPO. In addition, the applicant must show that this breach of procedure was not a mere formality but also ‘that it is to be assumed that this has had an effect on the arbitration award’ (section 1059(2)(d) ZPO). This requirement of causality in the German Arbitration Law goes beyond the wording of the Model Law (cf. article 34(2)(a)(iv)) and codified the existing and more restrictive jurisprudence of German courts in respect to setting-aside proceedings.12

The FCJ argued that as a matter of law, the decision of the arbitrators has to be reached by a majority decision (section 1052(1) ZPO) and that this provision necessarily implies a prior deliberation. Against this background, the FCJ concluded that it cannot be ruled out that the participation of one of the arbitrators has affected the deliberations and indeed the decision of the other arbitrators. In this context, the FCJ stated that it is irrelevant whether the decision has been reached unanimously and also whether the other arbitrators confirmed that even with a new arbitrator they would not have voted differently. For this reason, the applicant was not required to further substantiate the causal link between the flawed constitution of the tribunal and the award.13

The FCJ pointed out that the requirement of causality is only supposed to exclude technical and unmeritorious challenges14 and that the threshold for the causal link is not to be set too high. The arbitral award is already ‘affected’ in cases where there is ‘a possibility that the tribunal could have decided differently without the breach of procedure’. Bearing this in mind, the FCJ concluded that it can never be ruled out that the arbitral tribunal would have decided differently had there been a different arbitrator on the tribunal. The FCJ effectively acknowledged a factual but rebuttable presumption in favour of a causal link between the flawed composition of the tribunal and the award.

This decision of the FCJ recognised the dynamics of deliberations within arbitral tribunals and their presumed effect on the award. It also helpfully illustrated the evidentiary threshold that German Arbitration Law sets for the setting aside of arbitral awards and the resulting reluctance of German courts to interfere with the arbitral process for merely technical reasons.

Arbitral tribunals will have to exercise their best judgement when deciding whether to suspend the arbitral proceedings until the courts seized with the challenge have handed down a decision or to proceed with the arbitration.15 If, however, the challenge is evidently frivolous or merely intends to delay, some authors recognise that the tribunal is under a positive obligation to continue with the proceedings.16

Miscellaneous issues

Higher Regional Court of Munich, 1 October 2014, 34 SchH 11/14

This case brought under section 1032(2) ZPO, one of the provisions specific to the German Arbitration Law referred to above in the introductory section. The Higher Regional Court of Munich (the Munich Court) had been seized prior to the constitution of the arbitral tribunal to decide whether an arbitration clause was invalid because the appointing authority named therein refused to act as such. Prior to the 1998 Reform, a pathological appointment mechanism could indeed render the whole arbitration clause invalid. The 1998 Reform abrogated the respective provision, however. The Munich Court therefore upheld the arbitration agreement distinguishing between the arbitration clause and mere procedural rules concerning the constitution of the tribunal. It stated that one was independent of the other. Should the clause on the constitution of the tribunal prove pathologic, the statutory default rules apply. The Munich Court thereby echoed the explanation given obiter by the FCJ in a decision of 18 June 2014.17

Federal Court of Justice, 24 July 2014, III ZB 83/13

With its decision of 24 July 2014, the FCJ decided a number of previously still undecided issues under the reformed German Arbitration Law relating to procedural aspects of the review proceedings in Germany and to the validity of an arbitration clause.

The complainant challenged the decision of the Higher Regional Court of Munich (the Munich Court) upholding an arbitral tribunal’s partial award on jurisdiction because the Munich Court had decided without an oral hearing, despite the complainant’s application to the contrary. The complainant considered this to be in violation of, in particular, article 6 of the European Convention on Human Rights (ECHR). The German Arbitral Law, in section 1063(2) ZPO, requires an oral hearing only ‘if the reversal of the arbitration award has been petitioned or if grounds for reversal pursuant to section 1059(2) are conceivable in the case of a petition’. Yet, according to the explanatory notes of the 1998 Reform, it was expected that a court reviewing an arbitral award, in pursuance of article 6(1)(1) ECHR, would always grant an oral hearing upon application by one party.18

The FCJ nonetheless upheld the decision of the Munich Court because, according to the jurisprudence of the European Court of Human Rights, article 6(1)(1) ECHR does not apply to procedural decisions, including those relating to the competence of a court or tribunal. Since the Munich Court was seized to rule on the competence of an arbitral tribunal which had affirmed its jurisdiction in a partial award, article 6(1)(1) ECHR did not apply. The FCJ furthermore explained that said article only fully applied to first instance proceedings and that the arbitration tribunals, not the national courts reviewing a decision by an arbitral tribunal, are the ‘courts’ of first instance. For the purposes of the ECHR, a review of an arbitral award was to be considered as an ‘appeal’ against the award. Whether to hold an oral hearing was thus at the discretion of the Munich Court which it had exercised appropriately.

In addition, the FCJ was called upon to rule on the validity of the arbitration clause. The complainant considered it invalid due to lack of the required form and because it was combined with an invalid Kompetenz-Kompetenz clause.

The first issue arose because the clause was contained in a contract for the acquisition of real estate which according to German law must be recorded by a notary. This obligation extends also to ancillary agreements. Prior to the decision of the FCJ, it was disputed in German doctrine whether, under the reformed German Arbitration Law, an arbitration clause contained in or relating to a contract requiring a certain form, also had to conform to this requirement and, if so, whether it extended also to the arbitration rules referred to in the arbitration clause.

The FCJ, invoking the principle of the separability of the arbitration clause, answered this question in the negative. Since the validity of the arbitration agreement must be determined separately from the main contract, the arbitration agreement does not have to conform to the form required for said contract but only to the written form of section 1031 ZPO. Consequently, the arbitration rules referred to also do not have to conform to this form. Moreover, even the form requirement of section 1031 ZPO only applies to the arbitration clause itself but not to the procedural aspects agreed between the parties for such an arbitration and typically contained in the arbitration rules.

The FCJ also dismissed the complainant’s second invalidity argument relating to the Kompetenz-Kompetenz clause. The slightly modified standard DIS arbitration clause at issue was followed by a clause explicitly stipulating that the arbitral tribunal is competent to decide with binding force on the validity of the arbitration clause. The FCJ interpreted this as a Kompetenz-Kompetenz clause whereby the German courts would be prevented from reviewing this finding by the arbitral tribunal. While such a clause was admissible under German Arbitration Law prior to the 1998 Reform, the FCJ reaffirmed its 2005 decision that the reviewability of the arbitral tribunal’s decision on its own competence, provided for in sections 1040(3)(2) and 1059(2)(1)(a) ZPO, was now a mandatory element of the German Arbitration Law, rendering the Kompetenz-Komptenz clause invalid. Yet, the conjunction with the Kompetenz-Kompetenz clause does not ‘infect’ the arbitration clause since these clauses are considered to be separate clauses. In particular, the FCJ considered it far-fetched to assume that the Kompetenz-Kompetenz clause had been so important to the parties that they would not have submitted to arbitration had they known that the validity of the arbitration agreement could be reviewed by national courts.

The FCJ also dismissed the argument that the arbitration clause, pursuant to which disputes were submitted to arbitration ‘without the possibility to seize the ordinary courts of law’, was invalid. It held that the parties had not intended to state anything different from the standard wording of the DIS clause ‘without recourse to the ordinary courts of law’. The clause thus did not unlawfully deny the parties recourse to state courts.

With its decision, the FCJ continued its arbitration friendly approach to the validity of arbitration agreements by sensibly interpreting arbitral clauses and containing the effects of invalid stipulations to the respective provision.

Notes

  1. Section 1031(2) ZPO makes an exception to the written form requirement of the Model Law and thus caters for customary law concepts such a non-responsiveness to a commercial letter of con-firmation.
  2. UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration, available at www.uncitral.org/pdf/english/clout/MAL-digest-2012-e.pdf.
  3. See Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others [2012] SGHC 212.
  4. Since the 2012 edition of the ICAS/CAS Statute, this provision been modified. It now only refers to the qualifications of arbitrators. Considering the majority of the Federations in the ICAS, this might result to even less arbitrators on the list which ‘safeguard the interests of the athletess.
  5. See, inter alia, Heermann ‘Zukunft der Sportschiedsgerichtsbarkeit sowie entsprechender Schiedsvereinbarungen im Lichte des Pechstein-Verfahrens sowie des § 11 RegE-AntiDopG’ in SchiedsVZ 2015, 78, 79-80.
  6. Ibid.
  7. See, for example, Rombach ‘The “Pechstein-judgment” of the OLG München: What does it mean for international sports and commercial arbitration?’ in SchiedsVZ 2015, 105 (109).
  8. Brandner/Kläger ‘Ein Sieg über (oder für) das System der Sportschiedsgerichtsbarkeit?’ in SchiedsVZ 2015, 112, 119.
  9. Federal Court of Justice, Decision of 30 April 2014, III ZB 37/12. In a more recent decision, the FCJ clarified that the necessary legitimate interest continues to exist if the tribunal renders only a partial award on the merits. In this case, the State court’s ruling on the tribunal’s competence remains rel-evant since the arbitration is still pending (Decision of 18 June 2014, III ZB 89/13).
  10. In reaching this conclusion, the Court referred to the ECJ‘s Opinion 1/09 of 8 March 2011.
  11. Higher Regional Court Munich, Decision of 10 February 2014, 34 Sch 7/13.
  12. Münch in Rauscher/Krüger ‘Münchener Kommentar zur Zivilprozessordnung mit Gerichtsverfas-sungsgesetz und Nebengesetzen’ (4th ed. 2013), § 1059 para. 33, referring to the prevailing case law: Federal Court of Justice, NJW 1959, 2213, 2214; Higher Regional Court of Cologne, NVwZ 1991, 1116, 1117.
  13. See also ibid., para. 35.
  14. The Court referred to the Explanations of the Federal Government on the Draft Law Reforming Ar-bitral Procedure, Bundestag document (Bundestagsdrucksache) 13/5274, p. 59.
  15. Section 1037(3)(2) ZPO gives the arbitral tribunal the right to proceed while the challenge is pend-ing before the courts.
  16. Münch, note 12, para. 26.
  17. Federal Court of Justice, Decision of 18 June 2014, III ZB 89/13.
  18. Explanations, note 14, p. 65.