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Case 405: Art.7 MAL
Germany: Oberlandesgericht Hamm; 8 SchH 1/98
10 February 1999
Original in German
Published in: Betriebs-Berater, Beilage 11 zu Heft 38 (RPS), p. 10; DIS Online Database on Arbitration Law
The decision concerned the formal validity and the binding effect of an arbitration clause contained in the statute of an association.
The Claimant is a member of the Respondent, an association for the breeding of thoroughbred dogs. Respondent's rules provide that all disputes are to be settled by arbitration. Claimant initiated an action for damages against Respondent in state court. Respondent requested that the case be dismissed based on the existence of a valid arbitration agreement. Claimant applied for a declaratory judgment stating that the arbitration agreement was invalid.
The Oberlandesgericht Hamm dismissed the claim and held that the arbitration clause is binding upon Claimant. Irrespective of whether Claimant read the clause, took notice of it or even obtained a copy of the rules, Claimant did consent to them when it became a member. The rules govern the relationship between the association and its members. The Court stated that it is a characteristic of such rules that they apply equally to all the members, regardless of the knowledge which the members actually have of them. An additional individual agreement is not necessary in order to establish the rights and obligations regulated in the constitution of the Association.
The Court also rejected Claimants objection that the clause did not fulfil the necessary form requirements. It held that since the arbitration clause was contained in the rules of the association it did not have to meet the form requirements of § 1031 Abs. 5 ZPO for contractually agreed arbitration agreements, but rather, was governed by § 1066 ZPO. It stated that in the absence of an explicit statutory provision, and in view of the special interest of such an association to uniformly regulate its legal relationships with its members, the legislator could not have intended to heighten the formal requirements for this specific way of establishing an arbitration agreement.
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