Where the articles of association require an attempt to conduct conciliation proceedings before an action is brought, an action filed without such an attempt must be dismissed as inadmissible for the time being. Nor does admissibility revive if the conciliation proceedings are conducted before the close of the final oral hearing on the facts.<\/p>\n
The shareholders of Suhrkamp Verlag GmbH & Co. KG and Insel Verlag GmbH & Co. KG were in dispute over the validity of several shareholders\u2019 resolutions. Under the companies\u2019 articles of association, recourse to the courts was available to the parties only after an attempt had been made to conduct a settlement procedure within two months. In addition, the articles of association provided that actions challenging shareholders\u2019 resolutions had to be brought within three months of receipt of the relevant minutes. The action was filed before the settlement procedure provided for in the articles of association had been conducted. The defendants appealed the first-instance judgment, which had partially upheld the claim, before the Higher Regional Court of Frankfurt am Main. In the Court\u2019s view, the action was already inadmissible because the settlement procedure provided for in the articles of association had not been conducted before the action was brought.<\/p>\n
The provision in the articles of association constitutes a conciliation clause. In relation to conciliation or settlement procedures provided for by state law, the Higher Regional Court of Frankfurt am Main, following the Federal Court of Justice, takes the view that the attempt at settlement must precede the filing of the action. An action brought before such an attempt is to be dismissed as inadmissible for the time being. Admissibility does not revive later, because the purpose of such conciliation proceedings is to relieve the courts and to resolve disputes swiftly and cost-effectively. If an attempt at conciliation could simply be made after the action had been filed, without the claimant having to fear any disadvantage, that purpose would not be achieved. The same applies to contractually agreed conciliation procedures: these too serve a purpose only if the procedure provided for prevents an action from being brought and avoids the public disclosure of an internal conflict. The conciliation clause is not to be regarded as unreasonable, inequitable or therefore invalid when viewed together with the contractual time limit for challenging resolutions, in particular in light of the one-month challenge period provided for under stock corporation law and, at least reliably, capable of being agreed under GmbH law. Overall, even under these provisions the shareholder still has three months to decide whether to bring an action, even if only approximately one month remains to initiate the conciliation procedure.<\/p>\n
Practice note: The Higher Regional Court of Frankfurt am Main also had to address the distinction between conciliation clauses and arbitration clauses. Whereas the latter exclude recourse to the state courts, a conciliation clause merely places a private procedure before proceedings before the state courts. The distinction between the two types of clause is particularly important in drafting practice in relation to formal requirements: while conciliation clauses may be agreed without any particular form, section 1031 of the German Code of Civil Procedure provides for a special form for arbitration clauses.<\/p>\n
Higher Regional Court of Frankfurt am Main, judgment of 6 May 2014 \u2013 5 U 11671 = BeckRS 2014, 09185
\nSource: NJW-Spezial 18\/2014<\/p>","protected":false},"excerpt":{"rendered":"
Where the articles of association require an attempt to conduct conciliation proceedings before an action is brought, an action filed without such an attempt must be dismissed as inadmissible for the time being. Nor does admissibility revive if the conciliation proceedings are conducted before the close of the final oral hearing on the facts. The […]<\/p>\n","protected":false},"author":29,"featured_media":55742,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[139],"tags":[],"class_list":["post-55741","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-en"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t