Pactum De Non Petendo Agreement

Pactum De Non Petendo Agreement

In January 2016, the Bundesgerichtshof had to rule on whether an arbitral tribunal had jurisdiction to rule on an application whether the parties had agreed to an arbitration procedure before the arbitration, but the applicant had directly filed an application for arbitration. The Bundesgerichtshof ruled that a pactum of non petendo contained in an expert finding agreement would not affect the jurisdiction of the arbitral tribunal for an arbitration decision submitted to arbitration. In addition, the Tribunal interpreted the expert agreement between the parties, giving general guidance on the type of litigation that falls within the scope of these agreements. In addition, the courts held that, even if the dispute had fallen within the scope of the expert agreement, the arbitration tribunal would nevertheless have had jurisdiction to rule on the claim, provided it fell within the arbitration agreement. In court submissions, an expert finding agreement may include a non-petendo pactum temporarily excluding a party`s right to sue a tribunal or arbitral tribunal. However, the legal consequence of such an agreement would be “only” the possibility that an arbitration procedure would be temporarily inadmissible, or that the application would be temporarily dismissed as unfounded pending the conclusion of the expert review procedure. In any event, a non-petendo pactum does not exclude the jurisdiction of the arbitral tribunal to rule on the claim. Thus, the Tribunal correctly held that it was competent for the claim. The courts interpreted section 16.2.1 of the contract and found that the dispute between the parties over a right to guarantee invoked by the purchaser was not within the scope of the expert finding agreement. In court submissions, Section 16.2.1 provides for a so-called narrow agreement on the finding of experts, which concerns only disputes over facts and technical issues.

The parties did not agree that the expert is also empowered to resolve disputes over the contractual rights and obligations of the parties (so-called broad agreement on the finding of the experts).

Scroll to top