Arbitration In Germany Research Articles

FEATURES OF ESTABLISHING ARBITRABILITY IN THE COUNTREES OF THE ROMANO-GERMANIC LEGAL SYSTEM

The article is devoted to the analysis of the peculiarities of securing and regulating arbitrability in the countries of the Romano-Germanic legal system, as France, Sweden, Germany and Finland. It is established that arbitration is divided into objective and subjective, each of which has its own specific features in each country's legislation. It is emphasized that French arbitration law is one of the most pro-arbitration in Europe, in particular on matters of arbitrability and public order. Concerning the features of the Swedish regulation of arbitrability, it is stated that arbitrability is determined both by the law applicable to the arbitration agreement and by Swedish law. Unless the dispute is arbitral under one of the above jurisdictions, the arbitral tribunal may not have jurisdiction to hear that particular dispute. It is established that, since the problem of impossibility to enforce an arbitration agreement on a particular issue is, in fact, a problem of the validity of the contract, then the proper moment of verification of arbitrability is the moment of the conclusion of the parties to the arbitration agreement. If the dispute arose at the same time as the parties concluded the agreement and the parties could then settle it amicably, then such dispute shall be arbitrary. The position of the Finnish legislation on limiting the right of a party to an arbitration hearing to request the annulment / refusal of enforcement of an arbitral award on grounds not stated by the arbitral tribunal is analyzed. It has been established that, in the practice of the Finnish courts, there are no examples of restrictions on the right of parties who conclude commercial contracts involving budget (state) financing, to submit disputes from such contracts to the arbitral tribunal. It has been established that any property claim may be the subject of arbitration in Germany. German law reflects the concept of arbitrability, which provides for two conditions for admissibility of the dispute through arbitration: if the subject matter of the dispute does not fall within the exclusive jurisdiction of the German state court (objective arbitrability), and when the parties to the dispute entered into a valid arbitration subjective arbitrage).

Commercial Arbitration in Germany, by Richard Kreindler, Reinmar Wolff and Markus S. Rieder

Commercial Arbitration in Germany , by Richard Kreindler, Reinmar Wolff and Markus S. Rieder, Oxford University Press, 2016. Commercial arbitration has a long tradition in Germany. Even the first version of the German Civil Procedure Code, the ZPO, enacted in 1879, contained fairly liberal rules on arbitration. Arbitration agreements were enforced as a matter of course and led to the exclusion of the jurisdiction of the state courts. The German Institution for Arbitration (DIS) has its roots back in 1922 and the so-called Hamburger Freundschaftliche Arbitrage , a commodity arbitration platform, also goes back centuries. In the second half of the 20th century, commercial arbitration was used more and more often in Germany in particular in the area of corporate law, mergers and acquisitions, joint ventures, industrial plants and, more recently, in the context of Private Public Partnerships (PPPs). Admittedly, there were some odd features under the old German arbitration law. But, in 1998, these old-fashioned features were eliminated when Germany adapted the UNCITRAL Model Law by implementing it into the 10th Chapter of the ZPO. Ever since, Germany has been recognized as an arbitration-friendly jurisdiction and has developed into a very active arbitration venue, both domestically and internationally. It is fair to say that today in Germany, in some industries and in certain types of contracts, arbitration clauses are the norm and no longer the exception. One can also observe that more and more international arbitration proceedings are taking place in Germany and that German case law on arbitration, coming from the various Courts of Appeal, has made important contributions to the body of arbitration law, as regularly reported in foreign legal journals and commentaries. Against this background, one must warmly welcome the … klaus.sachs{at}cms-hs.com

The Legality of an Arbitration Agreement in Favour of CAS Under German Civil and Competition Law - The Pechstein Ruling of the German Federal Tribunal (BGH) of 7 June 2016

The German Federal Tribunal (BGH) issued its decision in the long-awaited Pechstein case on June 7, 2016 (“BGH Ruling”). The core issue at stake before the BGH was the validity of the arbitration agreement between Ms. Claudia Pechstein (the Athlete), a speed skater and five-time Olympic gold medallist, and the International Skating Union (ISU). The BGH overturned the decision of the Munich Court of Appeals (OLG Munchen) and upheld the arbitration clause between the Athlete and ISU. The present note offers an account of the jurisdictional issues raised in the BGH Ruling under German law and discusses the legal dimensions and the repercussions of the decision for sports arbitration in Germany and at the international level.

A good introduction to IP, civil procedure, and arbitration in Germany

There is very little literature on German IP law in English. This book promises, according to the publisher, to close that gap, having predominantly a practitioner audience in mind. The book covers, by way of an introduction, all aspects of German IP law. In addition to the salient categories (trade marks, designs, copyright and neighbouring rights, patents and utility models, plant varieties), specific emphasis is placed on enforcement, including the recent changes brought about by European legislation in that area. In addition, the editors provide basic information concerning practical enforcement by way of both judicial proceedings, including interim injunctions, and arbitration and mediation. Much of the text consists of a translation of each relevant German IP statute into English, complemented by a brilliant glossary. This is welcome and doubtless reflects a great deal of excellence and linguistic skill. Overall, the editors place much emphasis on the procedural and contentious aspects of enforcement. To that end, they provide the reader with textual samples of relevant legal documents such as briefs, tables of calculating court costs, and a highly commendable glossary of legal terms. These samples provide an impression of legal writing in Germany translated into English; the samples cannot, of course, be practically used by a UK practitioner to enter into communication with German courts. Likewise, arbitration and mediation aspects in IP cover much ground, certainly much more than would be expected in a volume primarily concerning IP law.

An Introduction to the New German Arbitration Act Based on the UNCITRAL Model Law

A FUNDAMENTAL and radical change of the arbitration law in Germany is taking place in 1998. The Tenth Book of the Code of Civil Procedure (ZPO) which has contained the German arbitration law since the coming into force of the ZPO as long ago as 1879, is being fully replaced by a new text based on the UNCITRAL Model Law on International Commercial Arbitration. Thus, after the institutional framework for national and international arbitration in Germany has been newly shaped in 1992 by the concentration of the former institutions at the Federal level within the German Institution of Arbitration ( Deutsche Institution fur Schiedsgerichtsbarkeit, DIS),1 the legal framework for national and international arbitration in Germany is now modernized into an internationally co-ordinated form. This is of high relevance and practical importance in a country which has a long tradition of arbitration and where today arbitration is used widely in the practice of industry and commerce in their business relations and contracts both to other German enterprises as well as to private and public enterprises in foreign states. Germany being one of the major participants in international commerce and investment, this preference of German enterprises for arbitration specifically in their international business relations and contracts has led to thousands of arbitration agreements and clauses being concluded by German enterprises every year. But this has not led to a great number of international arbitration proceedings in Germany itself. The usual practice in international business relations being that the place of arbitration is chosen not to be in the home state of either party, these arbitrations involving German enterprises led normally to places of arbitration outside Germany. On the other hand, in spite of the long arbitration tradition and the preference for arbitration in Germany, foreign enterprises did not develop a preference for …

Das Neue Recht der Schiedsgerichtsbarkeit (The New German Arbitration Law) edited by Klaus-Peter Berger

Now it will be safe to arbitrate in Germany. Before the 1998 New German Arbitration Law, it was no accident that Europe's finest procedural lawyers were German. Both Germans and non-Germans needed them. Foreign lawyers comfortable with ad hoc arbitration in Paris, Geneva, Stockholm and London shied at German arbitration. There was something ‘of the night’ about it. And for a country rich in international arbitrators, it seemed odd that so much of their work was directed abroad. Now, at the dawn of the new millennium, a new era has begun for German arbitration; and once again, it is the UNCITRAL Model Law which has brought a great trading nation into those legal communities favourable to commercial arbitration, both in reality and (as importantly) foreign perception. Arbitration is now undoubtedly the most popular form of dispute resolution system for transnational trade in every advanced economy around the world; and the Model Law has become the yardstick by which every international user measures an arbitral forum. And yet the New German Law, like the Model Law, is a subtle text. It requires explanation. No user of the Model Law can exist, for long, without his Broches or Holtzmann & Neuhaus, just as it would be delinquent to use the UNCITRAL Arbitration Rules without at close hand a Sanders or van Hof. And even the English, with their lengthy New 1996 Act, need the detailed ABC commentaries from their Departmental Advisory Committee (DAC) to inform them of its meaning. Likewise the New German Law alone, however close to the language of the Model Law, would not suffice to assuage the natural concerns of the foreign user unused to international commercial arbitration in Germany.

A Foreign Perspective on the New German Arbitration Act

BOTH FROM a foreign and a German perspective, the new German Arbitration Act, in replacement of the relevant portions of Chapter 10 of the German Code of Civil Procedure ( Zivilprozesordnung or ZPO),1 can be assessed in a focused fashion on the basis of four categories of questions. First, to what extent was German arbitration law heretofore in need of change or reform? Secondly, to what degree and in what way does the new German arbitration law represent a correction of the shortcomings in the landscape of German arbitration up to now? Thirdly, which of the new provisions in the law are particularly noteworthy from a foreign, i.e . non-German, perspective? Fourthly, which challenges for greater acceptance of Germany as a locale for international arbitration remain even after the entry into force of the new German law? By necessity, this fundamental question must precede any detailed commentary on the particular provisions of the new German law from a foreign viewpoint. Indeed the inquiry lends itself toward three subsets of questions. Throughout the inquiry, a differentiation must be observed between ‘domestic’ and ‘international’ arbitration. The latter is meant here to refer to arbitration involving non-German parties in some manner. First, it is important to assess the extent to which the codified law itself has been in need of reform. Then one must pose the same question through the prism of the jurisprudence, including the case law of the German Supreme Court ( Bundesgerichtshof , or BGH) related to specific provisions of Chapter 10 of the ZPO and other court decisions on arbitration. Finally, what has been the influence of other factors which are to a degree independent of the pre-existing legislation and case law? These include historical, linguistic and cultural aspects. ### (a) The Extent to which the Codified Law Has Been in Need of Reform #### (i) Legislation affecting domestic German arbitration With regard to internal, that is, domestic arbitration in Germany ( e.g …

The UNCITRAL Model Law: New Draft Arbitration Acts in Germany and Sweden

### (a) The success of the Model Law The UNCITRAL Model Law on Arbitration was adopted by the United Nations on 11 December 1985 as a recommendation to the states that they take account of it when changing existing or enacting new legislation dealing with international commercial arbitration. Meanwhile, this recommendation has been followed by an increasing number of nations, including, e.g . Canada (‘Commercial Arbitration Act’ dated 17 June 1986), Australia (‘International Arbitration Amendment Act 1989, in force since 12 June 1989) and some US States.1 In Europe, the Model Law has been adopted as a pattern for modern arbitration acts only in a few countries: Bulgaria (‘Law on International Commercial Arbitration’, dated 29 July 1988), Cyprus (‘The International Commercial Arbitration Law’ of 1987), the Russian Federation (‘Law on International Commercial Arbitration’, dated 7 July 1993) and Scotland (‘Law Reform (Scotland) Act 1990, section 66, Schedule 7, in force since 1 January 1991). However, of those countries in which, traditionally, most of the arbitration proceedings take place, for example England and Switzerland, none has so far adopted the Model Law entirely or partially.2 Therefore, it is particularly interesting to note, that two states of Western Europe, Sweden and Germany, are considering following the recommendation given by the UN 10 years ago. ### (b) The Situation in Germany The law on arbitration in Germany is more than 100 years old. The provisions that regulate domestic and international arbitration are part of the Act on Civil Procedure (Zivilprozesordnung, ZPO) which was enacted in 1877 and amended in 1930 and 1986, but only with respect to some non-essential issues. The ratification of international treaties such as the 1958 New York Convention and the ongoing modification of the present act by case law of the Budesgerichtshof, makes if difficult and even impossible for foreign lawyers to get reliable knowledge of the German law on arbitration. …

International Economic Arbitration in Germany: A New Era

AT a press conference held in Bonn on January 21, 1992, which was featured in the major German newspapers and on German television, the Chairman of the German Federation of Industry and Trade, together with some German arbitration specialists, announced the foundation of the German Arbitration Institution (‘ Deutsche Institution fur Schiedsgerichtsbarkeit, e.V .’, ‘ DIS ’) on January 1, 1992, Some months earlier, on October 31, 1991, the Working Group on the Reform of the German Law of Civil Procedure had held its inaugural session at the Federal Ministry of Justice in Bonn to commence work on the reform of German arbitration law. These dates mark the beginning of a new era of international arbitration in Germany. The development deserves attention for various reasons. German unification has made Germany the gateway to Eastern Europe. The political and economic changes in this part of the world, and the need to build up run-down state economies, will lead to a substantial increase in commercial and financial activities. The state of judicial emergence of the court systems in Eastern Europe makes arbitration the only viable alternative for an effective dispute resolution process for these cross-border transactions. This is true, not only for the traditional commercial contract, but also for financial agreements, even though banks and other lending institutions have traditionally refrained from accepting arbitration agreements in their contracts. Also, the coming EC Single European Market, and the expected substantial rise in cross-border trade and resulting commercial disputes, account for Germany's increasing significance on the international arbitration scene.1 International practitioners and academicians alike have long since deplored the striking contrast between Germany's strong position in world trade and the small number of international arbitrations taking place in Germany every year. Professor Sandrock has aptly described this phenomenon: > Though it is an elephant …

Courts of Arbitration in Germany

Courts of Arbitration in Germany