CHAPTER 16 - Germany - Interim Measures in International Arbitration
Author(s):
Richard Kreindler
Page Count:
22 pages
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1 PDF Download
Published:
May, 2014
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Originally from: Interim Measures in International Arbitration
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RELIEF PROVIDED BY COURTS
1. (a) Are courts authorized to issue orders of attachment,
injunctions or other provisional orders with respect to
arbitration proceedings?
Yes. Section 1033 ZPO, contained within the Tenth Book of the
German Code of Civil Procedure which is the UNCITRAL Model Lawbased
self-contained law on domestic and international arbitration in
Germany, expressly states that the existence of an arbitration agreement
will not preclude jurisdiction of the German courts with respect to
provisional relief in relation to the matters in dispute. Accordingly, the
potentially affected adverse party cannot invoke the arbitration
agreement to prevent a German court from considering and granting
provisional relief. Most German courts and commentators are of the
view that ZPO §1033 is binding, without an opt-out-option in respect of
provisional relief by the courts. The rules concerning such measures are
set forth in §§916 et seq. of the German Code of Civil Procedure
(“ZPO”).
(b) If so, please describe the nature of any such provisional
relief that is available.
Preliminary relief is available whenever the claimant’s ability to
enforce an award or judgment may be endangered by the duration of the
proceedings on the merits. There are generally two basic forms of relief
available: attachment (Arrest, ZPO §916 et seq.) and preliminary
injunctions (einstweilige Verfügung, ZPO §935 et seq.). Where
attachment would satisfy the plaintiff, preliminary injunctions will
generally not be available. However, the two forms are available
cumulatively in exceptional cases if attachment does not render the
injunction moot or vice versa.1