BayObLG on the Arbitration Clause in a GmbH Articles of Association
The Bayerische Oberste Landesgericht (BayObLG, Bavarian Supreme Regional Court) ruled by order of 02.10.2026 – 102 SchH 74/26 – on the admissibility of arbitral proceedings in connection with a dispute concerning defects in a shareholders’ resolution. According to the decision discussed, an arbitration clause in the articles of association of a GmbH (German limited liability company) is void to that extent under § 138 para. 1 BGB (German Civil Code) insofar as it covers disputes concerning defects in resolutions without granting the required participation rights to shareholders not directly involved in the arbitral proceedings.
Based on the current publicly verifiable status outside paid specialist databases, the order has so far only been documented in a private case-law database. A press release by the Bayerische Oberste Landesgericht or an official publication in BAYERN.RECHT could not be found as of 16.10.2026.
Background: Arbitration Agreement for Disputes Arising from the Articles of Association
The proceedings were based on the articles of association of a GmbH. They contained an arbitration clause under which all disputes arising from or in connection with the articles of association were to be decided by an arbitral tribunal to the exclusion of the ordinary courts. A judge of the Landgericht München I (Regional Court of Munich I) was to chair the arbitral tribunal.
A shareholder stated that she intended to initiate arbitral proceedings in order to challenge a shareholders’ resolution. The applicant then applied to the Bayerische Oberste Landesgericht under § 1032 para. 2 ZPO (German Code of Civil Procedure) for a declaration that the arbitral proceedings were inadmissible. This application was successful.
Invalidity of the Arbitration Clause in Resolution Defect Disputes
Partial Nullity under § 138 para. 1 BGB
The Bayerische Oberste Landesgericht did not consider the arbitration clause in the articles of association to be invalid in its entirety, but only insofar as it covers disputes concerning defects in resolutions. The decisive provision was § 138 para. 1 BGB. According to the decision, the clause did not meet the requirements applicable to arbitration agreements concerning resolution defect disputes under GmbH law.
Resolution defect disputes differ from ordinary individual disputes between individual shareholders. Decisions on the validity or invalidity of shareholders’ resolutions regularly affect not only the parties directly involved in the proceedings. Under GmbH law, the effect erga omnes ordered in §§ 248, 249 AktG (German Stock Corporation Act) for court decisions on resolution defect disputes is applied by analogy.
Effect of Arbitral Awards on Shareholders Not Involved
According to the case law presented, these effects also apply mutatis mutandis to arbitral awards where resolution defect disputes are conducted before an arbitral tribunal on the basis of an arbitration clause in the articles of association. This gives rise to a particular need to protect shareholders who are not parties to the arbitral proceedings but whose legal position may be affected by the outcome of the proceedings.
In this area, an arbitration clause can claim substantive legitimacy only if it complies with certain minimum requirements. If these requirements are lacking, the subsequent decision of the arbitral tribunal cannot have the same effect against shareholders not involved without impermissibly curtailing their rights.
Minimum Requirements for Arbitration Clauses in GmbH Resolution Defects
The decision follows the settled case law of the Bundesgerichtshof (BGH, Federal Court of Justice). The starting point is, in particular, the judgment “Schiedsfähigkeit II” on the arbitrability of resolution defect disputes in a GmbH. In that leading decision, the arbitration clause in the articles of association likewise did not meet the required minimum standards; the arbitration objection raised therefore did not succeed.
According to this case law, an arbitration clause enshrined in the articles of association must, in resolution defect disputes, in particular observe the following requirements:
- The arbitration clause must have been included in the articles of association with the consent of all shareholders.
- Each shareholder must be informed about the initiation and course of the arbitral proceedings.
- The shareholders must thereby be put in a position to join the proceedings at least as interveners.
- All shareholders must be able to participate in the selection and appointment of the arbitrators, unless this is carried out by a neutral body.
- It must be ensured that all resolution defect disputes concerning the same subject matter can be consolidated before one arbitral tribunal.
According to the commentary, the provision in the articles of association relevant in the dispute did not meet any of these requirements. The arbitration clause was therefore not valid for resolution defect disputes.
Standard of Interpretation: Articles of Association from an Objective Perspective
Wording, Content and Purpose of the Provision
In assessing whether an arbitration clause satisfies the requirements of the case law, the articles of association must be interpreted from the perspective of an objective third party. The wording, content and purpose of the provision in the articles of association are decisive. It is therefore not decisive whether, in the individual case, all potentially affected shareholders were in fact informed.
In the specific proceedings, the shareholder’s submission that the minimum requirements had in fact been complied with because all shareholders had been notified of the initiation of the arbitral proceedings was therefore irrelevant. Even if, according to her submission, all potentially affected persons had thereby had the opportunity to participate in shaping the procedure, this did not alter the invalidity of the clause.
No Cure Through Actual Information in the Individual Case
The validity of the arbitration clause is not assessed according to whether all shareholders in a specific proceeding had knowledge of the initiation of the arbitral proceedings. Rather, it is necessary that the provision in the articles of association itself provide for the required information, participation and consolidation mechanisms. If these requirements are absent from the articles of association, actual notification in the individual case is not sufficient.
Procedural Framework under § 1032 para. 2 ZPO
The successful application was based on § 1032 para. 2 ZPO. This provision makes it possible to have the admissibility or inadmissibility of arbitral proceedings determined before a state court. According to the case law of the Bayerische Oberste Landesgericht, however, such an application is admissible only until the arbitral tribunal has been constituted.
If the arbitral tribunal has already been constituted, the inadmissibility of the arbitral proceedings must be asserted before the arbitral tribunal itself in proceedings under § 1040 paras. 2 and 3 ZPO. This time window was not addressed in further detail in the underlying commentary, but it is significant for the procedural classification.
In proceedings under § 1032 para. 2 ZPO, the Bayerische Oberste Landesgericht regularly sets a separate amount in dispute and orders the unsuccessful party to bear the costs. In a parallel case with case reference 102 SchH 114/23 e, the amount in dispute was approximately EUR 851,000. No public information is known regarding costs and the amount in dispute in the proceedings 102 SchH 74/26.
Classification Regarding the Separability of the Arbitration Agreement
For the classification of partial nullity, it is also significant that, pursuant to § 1040 para. 1 sentence 2 ZPO, an arbitration agreement is treated as an agreement independent of the other contractual provisions. The 1st Arbitration Senate of the Bayerische Oberste Landesgericht held on 12.03.2026 – 101 SchH 122/25 e – that the validity of an arbitration clause must be assessed independently of the continued existence of the main contract.
This separation corresponds to the principle of the autonomy of the arbitration agreement. In the context discussed here, the issue was therefore not a complete assessment of the articles of association, but the validity of the arbitration clause insofar as it was intended to cover resolution defect disputes.
Significance for Articles of Association of GmbHs
The decision illustrates the strict requirements placed on arbitration clauses where they are intended to cover resolution defect disputes in a GmbH. A broadly worded clause assigning all disputes arising from or in connection with the articles of association to an arbitral tribunal is not, without more, sufficient for this area.
It is particularly relevant that the required participation rights may not merely be granted in the practical course of subsequent proceedings. They must already be embedded in the provision in the articles of association itself. Otherwise, the clause may be invalid for resolution defect disputes under § 138 para. 1 BGB.
Frequently Asked Questions
BayObLG 102 SchH 74/26: When is an arbitration clause invalid in the case of GmbH resolution defects?
According to the decision discussed, an arbitration clause is invalid to that extent under § 138 para. 1 BGB insofar as it covers resolution defect disputes and does not provide for the required participation rights of the shareholders not involved.
§ 1032 para. 2 ZPO BayObLG: Until when can the inadmissibility of arbitral proceedings be determined?
According to the case law of the Bayerische Oberste Landesgericht, an application under § 1032 para. 2 ZPO is admissible only until the arbitral tribunal has been constituted. Thereafter, jurisdiction must be challenged before the arbitral tribunal under § 1040 paras. 2 and 3 ZPO.
What practical consequences does the BayObLG decision on arbitration clauses have for GmbH shareholders?
For GmbH shareholders, it may be decisive whether the articles of association expressly provide for information, participation and consolidation rights for resolution defect disputes. If such provisions are lacking, an arbitration clause may be invalid for this category of dispute.
Corporate Law Advice from MTR Legal
Arbitration clauses in articles of association touch on central issues of the internal governance of a GmbH, particularly where resolutions are challenged and the decision may have effects beyond the parties to the proceedings. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on corporate law matters with an international dimension as well as on national structural and dispute-related issues. Further information can be found at Legal advice in corporate law.
