In <span class="news-text_italic-underline">Docket No I ZB 6/26</span>, decided on 30 July 2026, the German Federal Court of Justice (“<span class="news-text_medium">BGH</span>”) considered whether an arbitrator could receive a third-party notice (Streitverkündung) in proceedings concerning the setting aside and enforcement of an award.
The applicant sought to set aside a domestic award issued by a three-member tribunal under the German Arbitration Institute (“<span class="news-text_medium">DIS</span>”) arbitration rules, while the respondent sought enforcement. The applicant alleged bias, arguing that its nominated arbitrator had failed to disclose longstanding co-operation with a law firm that had advised the respondent on the transaction underlying the dispute.
During proceedings before the Munich Higher Regional Court, the respondent requested service of a third-party notice on the arbitrator. It asserted that it might have a damages claim against him if the award were set aside for bias.
The court refused to serve the notice. In its view, the prohibition on third-party notices against judges and court-appointed experts applied by analogy to arbitrators.
The BGH reversed that ruling. It held the restriction in section 72(2) of the German Code of Civil Procedure (“<span class="news-text_medium">ZPO</span>”) could not be extended to arbitrators by analogy because the relevant interests were not sufficiently comparable.
The court identified two principal considerations:
The BGH did not regard procedural economy concerns relating to possible remittal under section 1059(4) of the ZPO as decisive. A party alleging bias and contemplating a damages claim against an arbitrator or the entire tribunal would generally not seek remittal to that same tribunal. The opposing party could assess the risk the arbitrator’s involvement as a third party might prevent remittal.
The decision is important for arbitrators and counsel involved in German-seated arbitrations. Although arbitrators have traditionally benefited from broad immunity from liability under German law, the ruling confirms they may be drawn into set-aside proceedings as third parties where a party considers it has a potential damages claim, particularly in cases involving alleged bias or failures of disclosure.
It also gives parties an additional procedural tool that may prevent remittal to the original tribunal. The ruling concerns the availability of third-party notice, rather than establishing liability on the arbitrator’s part.
