Private foundation as a minority investor: consumer status when appointing an arbitrator

Section 1 of the Austrian Consumer Protection Act (KSchG) asks whether a legal transaction forms part of a party's business. The legal form of a private foundation does not answer that question on its own. The OGH also applies the KSchG consumer definition where an arbitration party is domiciled or established abroad. For a foreign legal entity, the OGH considered an analogy to section 2 UGB, which treats certain entities as entrepreneurs by legal form. It compared the Liechtenstein family foundation to an Austrian private foundation, which is not a form-based entrepreneur. Its entrepreneurial status therefore depended on its actual activity under section 1(1) UGB.

The OGH examined the foundation's economic role and position within the company. Its conclusion concerned this specific shareholding and arbitration proceeding. It does not classify every private foundation, or every agreement entered into by one, as a consumer or an entrepreneur.

The OGH treats a shareholder's relevant influence over company management as decisive when assessing entrepreneurial status. The agreement on a shareholder's withdrawal dated 8 April 2025, which was filed in the case, showed that the foundation was a minority shareholder without management authority. The Court regarded its stake as a capital investment.

The decision sets no percentage threshold that automatically makes a foundation an entrepreneur. For an initial review, assemble the partnership agreement and amendments, management and representation rights, voting and consent rights, and the related resolutions. Those documents help show whether the foundation can actually influence how the company is run.

Under section 615 of the Austrian Code of Civil Procedure (ZPO), the OGH generally has jurisdiction to appoint an arbitrator under section 587(3). Section 617(8) excludes the OGH at first instance when a consumer is a party to the arbitration, regardless of whether the other parties are consumers or entrepreneurs.

Jurisdiction lies with the Landesgericht exercising civil jurisdiction that is named in the arbitration agreement or whose jurisdiction was agreed under section 104 JN. If neither was specified or agreed, jurisdiction lies with the Landesgericht in whose district the arbitral seat is located. If the seat has not yet been determined, the Commercial Court of Vienna is competent. If the dispute underlying the award is a commercial matter under section 51 JN, the Landesgericht exercises commercial jurisdiction; in Vienna, that is the Handelsgericht Wien. In this case, the OGH transferred the application to that court.

The decision identifies which court must deal with the application to appoint an arbitrator. The OGH did not appoint an arbitrator itself; it transferred the case to the Commercial Court of Vienna.

The decision does not resolve the company-law claims that may later be heard by the arbitral tribunal. Whether a different foundation with different shareholding and management rights qualifies as a consumer remains a case-specific question.