Facts
The respondent B. AG is the sole shareholder of E. AG, which operates a restaurant as a tenant on a property that was originally owned 50% by A. and 50% by C. On January 19, 2006, A. and C. agreed on an administrative regulation and an operating regulation for the co-ownership community, which included an arbitration clause. In September 2011, C. transferred his co-ownership share to B. AG.
As the parties could not agree on the joint appointment of an arbitrator, B. AG turned to the District Court of Höfe, which appointed a sole arbitrator. The arbitrator decided that a claim for payment of CHF 870,000 plus default interest should be filed on behalf of the co-ownership community against E. AG.
A. filed a complaint against the arbitral award and disputed the jurisdiction of the arbitral tribunal, as neither the formal nor the consent requirements for an arbitration agreement were met.
Considerations
The Federal Supreme Court dismissed the complaint. It stated that the arbitration clause in the rules of use and administration of the co-ownership community met the formal requirements of Art. 358 CPC and was also binding on the legal successor C., i.e., B. AG.
According to the case law of the Federal Supreme Court and the prevailing doctrine, statutory arbitration clauses bind not only the founding members, but also newly joining members, provided that membership is tied to the acquisition of a pre-existing membership share. This also applies to the arbitration clause in the rules of…