DiKE Die Rechtsnatur der Schiedsvereinbarung Merkmale und Wesen der verpflichtenden und der gestaltenden

It is controversial whether the arbitration agreement is a procedural contract or a partly private, partly procedural contract; to classify it as one or the other type of contract requires determining the legal nature of its elements. In doing so, it becomes apparent first of all that the conclusion of an arbitration agreement not only shapes the order of jurisdiction, but also gives rise to actual obligations, namely the obligation to (i) refrain from instituting state proceedings, (ii) cooperate in the appointment of the arbitral tribunal, (iii) participate in the advance payment of costs, (iv) implement the arbitral award and - to a limited extent - (v) maintain the confidentiality of the proceedings. Accordingly, the arbitration agreement consists of various elements; and all elements are to be qualified procedurally. The subject of the present work therefore also offers the opportunity to examine the legal figure of the procedural contract; in particular, to examine whether the aforementioned procedural contractual obligations are actionable like private contractual obligations and whether their breach gives rise to a claim for damages.