Expert determination

With the agreement of arbitration opinion parties to a legal dispute can be individual legal and factual question to clarify binding by a neutral third party. The results of the arbitration report can then only be checked limited to court.

Prerequisite for the binding effect of an arbitration report is an agreement between the parties. The agreement can be made free form. But because it restricts ability to obtain legal protection from state courts, they may, in individual cases immoral ( § 138 BGB) or according to § 307 BGB as Conditions be ineffective.

Differentiation from other forms of dispute resolution

Unlike an arbitrator the arbitrator decides not over an entire dispute, but only on individual aspects. An arbitration agreement is, therefore, if the parties wish to exclude the path to the ordinary courts as a whole. In contrast, a difference in opinion is intended if the possibility of judicial review under § 317 of the BGB is to consist.

Types of expert determination

The jurisprudential literature distinguishes between different types of arbitration report:

Contractual power determination

The parties to a contract are free to not set the contractually agreed performance itself, but left to the determination of a third party. This may also be the case later: for example, the parties to a lease can first agree on a rental and agree that the amount of rent at specified distances from a neutral third party shall be appropriately adjusted. In both cases, the § 317 ff BGB are directly applicable.

Rechtsklärendes report

If the parties have contractually owed ​​achievement indeed fixed, but can not determine the actual performance content, an arbitrator can be used to determine the contract. Example is the determination of 'habitual ' or ' reasonable' rent. The § 317 ff BGB are applicable by analogy.

Evidence report

Arbitrator can also be used as experts to make findings of fact, such on the amount of damage if improperly performed, a new building, the value of a car or the value of a company. Unlike an ordinary expert whose results can be used in the process only as evidence and there the free evaluation of evidence according to § 286 ZPO subject, the expert determination binding on the parties. The § 317 ff BGB are applicable by analogy here.

Appeal against arbitration report

The difference in opinion is 1 BGB only it reviewed by courts under § 319 paragraph 1 sentence, whether it is " clearly unreasonable " is.

In the contractual service provision by an arbitrator reviewed the court in the immediate application of the standard, whether the power determination grossly violates good faith and forces itself upon this a more informed and impartial observer immediately. The scale is objective, the arbitrator must not therefore have inequity in debt.

For quite clarifying and opinions of the proof verifier shall not decide in its reasonable discretion, but really. Ds expert determination is analogous application of § 319 paragraph 1 sentence 1 BGB therefore not binding when the inaccuracy a more informed and impartial observer imposes at least after a thorough examination.

About the immediate or appropriate wording of § 319 paragraph 1 sentence 1 BGB, the case-law arbitration report also treated then as binding, even if the reasoning of the opinion is heavily flawed because the evaluation methods are unsuitable or types not traceable or not verifiable.