Germany - Baker & McKenzie International Arbitration Yearbook: 2012-2013

Ragnar Harbst is a Partner in Baker & McKenzie’s Frankfurt office. He has acted in numerous international arbitration proceedings, both as party representative and as arbitrator. His practice focus is on construction and infrastructure related disputes. Mr. Harbst is also qualified as a Solicitor in England and Wales.

Heiko Plassmeier is a Counsel in Baker & McKenzie’s Düsseldorf office. He advises and represents clients from various industries, including the energy and automotive sectors, in domestic and international litigation and arbitration cases and has been acting as an arbitrator. Besides his dispute resolution practice, he also handles insolvency matters.

Jürgen Mark is a Partner in Baker & McKenzie’s Düsseldorf office. He practices in the areas of litigation and domestic and international arbitration. Mr. Mark has also acted as arbitrator in ad-hoc, ICC and DIS arbitration proceedings relating to corporate and post M&A disputes, major construction projects, product distribution and product liability.

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Originally from: Baker & McKenzie International Arbitration Yearbook: 2012-2013

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A. LEGISLATION, TRENDS AND TENDENCIES

A.1 New Act on the Promotion of Mediation and Other Procedures of Alternative Dispute Resolution Comes into Force

The new German Act on the Promotion of Mediation and other Procedures of Alternative Dispute Resolution (“Mediation Act”) came into force on 26 July 2012.

The Mediation Act goes back to the European Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters dated 21 May 2008. EU member states were obligated to transpose the directive into national laws by 21 May 2011. Due to lengthy consultation procedures with various interest groups, the draft act could only be presented to the German National Assembly (“Bundestag”) on 1 April 2011. After further detailed discussions in the Bundestag’s legal committee, the Mediation Act came into force on 26 July 2012. Despite this timeline, the legislative content of the Mediation Act's eight sections is limited. The act basically records what can be called best practice in mediation proceedings. After a broad definition of "mediation" in Section 1, Section 2 sets out the basic principles that the mediator is chosen by the parties, that the mediator may also conduct separate talks with the parties, and that any participant may terminate the mediation at any time.

Table of Contents:

A. Legislation, Trends and Tendencies

A.1 New Act on the Promotion of Mediation and Other Procedures of Alternative Dispute Resolution Comes into Force
A.2 Changes within the German Institution of Arbitration

B. Cases

B.1 An Arbitral Tribunal May Be Composed of More Than Three Arbitrators
B.2 Breach of Ne Ultra Petita Rule Is Contrary to Public Policy and Justifies the Setting Aside of an Award
B.3 Interpretation of "Arbitration Agreement"
B.4 An Arbitral Tribunal That Determines the Amount in Dispute for Purposes of a Cost Decision Does Not Inadmissibly Act as a Judge in Its Own Affairs
B.5 Attorneys’ Time Charges Recognized as Recoverable Costs
B.6 Non-compliance with an Agreed Procedure for the Taking of Evidence Justifies Vacation of an Award
B.7 Termination of an Arbitration Agreement because of Allegations of Procedural Misconduct and Fraud
B.8 Preclusion of Reliance on Reasons to Vacate after Failure to Challenge in the Country of Origin
B.9 No Recognition of Awards Vacated in Their Country of Origin

C. The Grant and Enforcement of Interim Measures in International Arbitration

C.1 Tribunal-Ordered Interim Measures
C.2 Court-Ordered Interim Measures
C.3 Enforcement of Interim Measures