Judgment of 27 February 1970

6 Arb. Int’l 79 (1970)

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Judgment of 27 February 1970

German Federal Supreme Court
6 Arb. Int’l 79 (1970)

Facts

In January 1952, the lessor (plaintiff) leased an area for mining fireproof materials to the lessee (defendant) under a contract requiring the lessee to pay the lessor a material levy for every ton of quartzite rock and sand mined and requiring the lessee to relevel certain areas. In November 1955, the parties signed an arbitration agreement requiring arbitration to arbitrate all differences of opinion or disputes arising from the contract signed in January 1952. In 1958, the lessor consulted the Landeszentralbank about the material levy clause in the contract. The Landeszentralbank informed the lessor that it had not approved the material-levy clause as a value-guarantee clause related to the material-levy clause as required under the Currency Law. The lessor then filed a claim for the relevelling. The lessee countered that the arbitration agreement prevented the lessor from raising the claim in court. The lessee further argued that, even if the arbitration could not proceed, the lessor had no claim to the relevelling under the lease because the lease was null and void. The regional court allowed the lessor’s claim. The lessee appealed to the regional appeal court, seeking to compel arbitration. The regional appeal court dismissed the appeal, finding that the arbitration agreement was a nullity and that the material-levy clause represented a nonapprovable value-guarantee clause covered by the Currency Law. The regional appeal court also found that the refusal of the Landeszentralbank to approve the clause rendered the lease a nullity under Article 139 of the Civil Code. The regional appeal court further concluded the under Article 139 of the Civil Code, the arbitration agreement was also a nullity. The lessee appealed to the Bundesgerichtshof, the federal supreme court.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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