Germany - Chapter III.6 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Author(s):

Dr. Patricia Nacimiento

Page Count:

72 pages

Media Description:

PDF from "Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition"

Published:

April, 2012

Jurisdictions:

Germany

Author Detail:

Patricia Nacimiento is a Partner in the Frankfurt office of Norr Stiefenhofer Lutz She appears as counsel or arbitrator in international arbitrations held under the rules of many leading institutions, such as ICC, LCIA, AAA, Swiss Chamber of Commerce, Stockholm Chamber of Commerce, Danish Arbitration Institute. As a member of the ICC Commission on Arbitration, She is a member of a task force on the development of directives for the involvement of experts in international arbitrations. In addition, she lectures on arbitration at the universities of Frankfurt am Main and Heidelberg.

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Description:

Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

As of 1998 Germany has undergone a substantial reform of its arbitration law, which has been adapted to international standards. The new law is mostly based on the UNCITRAL Model Law and dispenses with former provisions which had proven to be an obstacle to the development of arbitration in Germany. The reform has led to a significant increase in the number of arbitrations in Germany, and in particular, the establishment of Germany as a situs for international arbitrations. This chapter reviews the new German arbitration law as set forth in Book Ten of the German Code of Civil Procedure (Zivilprozessordnung, “ZPO”) as well as the Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e. V., “DIS”), the leading German institution for both national and international arbitration.

Introduction: Arbitration in Germany

Since 1998, with the reform of the German provisions on arbitration, arbitration in Germany has blossomed. Former obstacles have been removed, and international arbitration has profited therefrom. The improvement of Germany as a situs for arbitration was the express intent of the legislature when enacting the new arbitration law.1

The case law of the last years shows the clear tendency to respect and enforce the choice of parties to opt out of the judicial system in favor of arbitration. And the scope of disputes subject to arbitration has grown considerably to encompass numerous fields of law previously excluded from arbitration.

The reform has facilitated court proceedings in support of arbitration; the decisions of the courts reflect the intent to support arbitral tribunals and their decisions and to limit the courts’ intervention mainly to assistance, thus restricting the scope of judicial control.

Moreover, a general competence of the Higher Regional Courts (Oberlandesgericht) for any arbitration related issues was established. These are the usual courts of second instance, thus ensuring a certain specialization in and concentration of arbitration matters. In some courts, there are even specialized chambers with exclusive competence for arbitration matters. In all cases, both court costs and attorneys’ fees are predictable because they are based on statutory fees calculated in accordance with the amount in dispute. Furthermore, German law provides for the award of statutory court and attorneys’ fees to the prevailing party.

Table of Contents:

§ 6.01 Introduction: Arbitration in Germany

§ 6.02 Arbitration Law in Germany
[1] German Code of Civil Procedure, Book Ten
[2] International Arbitration Conventions to which Germany is a Party
[a] The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
[b] European Convention on International Commercial Arbitration
[c] The Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Arbitration)
[d] Bilateral Treaties

§ 6.03 Conciliation and Mediation

§ 6.04 Institutional and Ad Hoc Arbitration in Germany
[1] Institutional Arbitration
[a] Deutsche Institution für Schiedsgerichtsbarkeit e. v. (DIS)
[b] Other Institutions
[i] Frankfurt Stock Exchange
[ii] Court of Arbitration of the Hamburg Chamber of Commerce (Schiedsgericht der Handelskammer Hamburg)
[iii] German Maritime Arbitration Association (Vereinigung für deutsche Seeschiedsgerichtsbarkeit)
[iv] Permanent Court of Arbitration of the Lawyers’ Association Frankfurt (Ständiges Schiedsgericht der Rechtsanwaltskammer Frankfurt am Main)
[v] Various Other Institutions for Different Commodities
[2] Ad Hoc Arbitration in Germany

§ 6.05 Commencing an Arbitration
[1] Arbitrability
[a] Objective Arbitrability
[b] Subjective Arbitrability
[c] Relevant Examples of Arbitrable Fields of Law
[i] Corporate Disputes
[ii] Antitrust Law
[iii] Investment Services and Financial Futures Transactions
[iv] Patents
[v] Enforcement of Civil Judgment
[d] Fields of Law Excluded From Arbitration
[2] The Arbitration Agreement
[a] Form
[i] Separate Agreement or Arbitration Clause
[ii] Other Forms of Communication / Electronic Data
[iii] Reference in another Contract
[iv] Consumer Contracts
[v] Arbitration Agreements as Part of a Legal Act that Requires Notarization
[vi] Other Forms
[b] Cure of Formal Errors
[c] Contents of the Agreement
[d] Multi-party Arbitration
[e] Arbitration Agreements in Articles of Incorporation
[i] Partnerships
[ii] Corporations
[f] Arbitration Agreements in General Terms and Conditions of Trade
[i] Arbitration Agreements with a Consumer
[ii] Arbitration Agreements between Entrepreneurs
[g] Assignment of the Contract/Succession
[h] Separability/Procedural Defense
[3] The Arbitral Tribunal
[a] Composition of an Arbitral Tribunal
[b] Nationality of the Arbitrators
[c] Qualification of the Arbitrators
[i] Legal Restrictions
[ii] Lawyers or Other Experts as Arbitrators
[iii] Judges or Civil Servants as Arbitrators
[d] Appointment of the Arbitrators
[e] Challenge of Arbitrators
[i] Predominance of a Party in Selecting the Arbitrators
[A] Grounds
[B] Challenge Procedure
[ii] Impartiality and Independence
[A] Grounds
[B] Challenge Procedure
[iii] Incapacity
[iv] Competent State Court
[v] DIS Rules

§ 6.06 Applicable Law
[1] Applicable Procedural Law
[2] Applicable Substantive Law

§ 6.07 The Arbitration Proceedings
[1] General Rules
[2] Place of Arbitration
[3] Language of the Arbitration
[4] Statement of Claim
[5] Agreement on Written or Oral Proceedings
[6] Oral Hearing and Taking of Evidence
[a] Oral Hearing
[b] Taking of Evidence
[i] Witness Testimony
[ii] Documentary Evidence / Discovery
[c] Experts
[7] Waiver of Objections
[8] Default of a Party

§ 6.08 Specific State Court Proceedings in Support of or in Relation to Arbitration
[1] Prohibition to Initiate Arbitration
[2] Interim Measures of Protection
[3] Proceedings Based on Documents Only: Trial by the Record and Summary Bill Enforcement Procedure
[4] Summary Proceedings for Recovery of Debt or Liquidated Amount (Mahnverfahren)

§ 6.09 The Award
[1] Form and Content of an Award
[2] Costs
[3] Effect of an Award
[4] Correction, Interpretation, and Amendment of an Award
[5] Arbitral Award on Agreed Terms

§ 6.10 Recourse against an Award
[1] Application for Setting Aside
[2] Grounds for Setting Aside
[a] Grounds to Be Asserted by the Party
[i] Defective Arbitration Agreement
[ii] Denial of Fair Hearing
[iii] Lack of Jurisdiction of the Arbitral Tribunal
[iv] Procedural Defects
[A] General Requirements
[B] Improper Composition of the Arbitral Tribunal
[C] Procedural Irregularities
[b] Grounds to be Reviewed by the Court Ex Officio
[i] Lack of Arbitrability
[ii] Conflict with Public Policy
[3] Time Limit for Application
[4] Competent Courts
[5] Consequences of Setting Aside the Award

§ 6.11 Recognition and Enforcement of Arbitral Awards
[1] Domestic Awards
[2] Foreign Awards
[3] Procedure in Court Proceedings
[4] Provisional Measures of Enforcement before Recognition