Germany - Baker & McKenzie International Arbitration Yearbook: 2010-2011

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 acted as arbitrator. Besides his dispute resolution practice, he also handles insolvency matters.

Jürgen Mark is a Partner in Baker & McKenzie’s Düsseldorf office and a member of the Firm’s European Dispute Resolution Practice Group Steering Committee. 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 2010-2011

A. LEGISLATION, TRENDS AND TENDENCIES

A.1 New Adjudication Rules by the German Institution of Arbitration

In the 2009 edition of this Yearbook, we reported on the plans of the German Institution of Arbitration (“DIS”) to promulgate a set of adjudication rules. The new Rules came into force on July 1, 2010, and the main elements of the DIS Rules are summarized below.4

Table of Contents:

A. Legislation, Trends and Tendencies A.1 New Adjudication Rules by the German Institution of Arbitration A.1.1 DAB as a standing board during the project A.1.2 Basic elements of the DAB dispute procedure under the DIS Rules A.1.3 Effect of the DAB decision A.1.4 Notice of dissatisfaction A.1.5 Enforcement of DAB decision? A.1.6 Interim measures A.1.7 Remuneration of adjudicators A.1.8 Outlook B. Cases B.1 Challenge of an Arbitrator B.2 Most-favored Treatment and Recognition and Enforcement of Foreign Arbitral Awards B.3 Admissibility of Set-off Defenses in Proceedings for the Declaration on Enforcement of an Arbitral Award B.3.1 Confirmation of the established case law that substantive law defense can be raised in enforcement proceedings B.3.2 Clarification on the court of appeal’s jurisdiction for set-off defenses B.4 Preliminary Enforcement of Foreign Arbitral Awards in Germany B.5. Natural Justice—No Obligation for Tribunal to Hear Witnesses on Unsubstantiated Allegations—No Obligations for the Tribunal to Give Hints as to Its Legal Opinion B.5.1 No obligation to hear witnesses on unsubstantiated allegations B.5.2 No need for arbitral tribunals to inform parties on their preliminary legal evaluation C. Insolvency Issues in Arbitration C.1 Effect of Insolvency on the Validity of Arbitration Agreements C.1.1 Impecuniosity C.1.2 Choice of non-performance C.2 Insolvency before Commencement of Arbitration Proceedings C.3. Insolvency pending Arbitration Proceedings C.4. Insolvency after the Award C.5. Arbitrability of Disputes Following Rescission of a Transaction