German Arbitration Law Research Articles

Breaking Ground or Playing Safe? Evaluating the Proposed Changes in German Arbitration Law

Breaking Ground or Playing Safe? Evaluating the Proposed Changes in German Arbitration Law

Comparing the Role of the Courts in English and German Arbitration Law: Should Party Autonomy or Certainty Be Preferred?

At the forefront of these different approaches … lies an internal contradiction. Arbitration law must constantly grapple with this contradiction. It is within the discretion of the legislator to decide where to draw the line between party autonomy and legal certainty.” [Section C III, final paragraph]. This essay seeks to draw on the often complementary, but contrasting principles of party autonomy and legal certainty to distinguish the English and German legislators’ approach to the drafting of its national arbitration laws. Emphasis is on how they have differently defined the boundaries of the relationship between the courts and arbitral tribunals. Despite attempts by a 1985 United Nations Commission to harmonise the widely differing arbitration laws in Europe through the UNCITRAL Model Law, national systems have still sought to maintain certain features of their own arbitration rules in order to attract international parties to arbitrate in their countries. This author concludes that whilst English Arbitration Law provides more legal certainty for parties concluding arbitration agreements, an almost verbatim adoption of the UNCITRAL Model Law in Germany gives parties freedom to fill gaps in the substantive law by their own agreement.

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

Austria adopts the UNCITRAL Model Law

ON 1 JULY 2006, the new Austrian arbitration law entered into force.1 For the past 109 years, Austrian arbitration law had hardly changed. A few issues were considered to merit amendment,2 but in general the 13 articles of the fourth chapter of the Austrian Civil Procedure Code (CPC) provided a reliable framework for domestic and international arbitration. In 2000, a working group within the Ludwig-Boltzmann-Institut fur Rechtsvorsorge und Urkundenwesen started to look at the feasibility and content of a reform. Given the growing importance of the UNCITRAL Model Law (ML) the working group decided at the start to adopt the ML to the largest extent feasible, taking into account the experience of other Model Law countries, not least Germany, which had adopted the Model Law in 1997. This approach was considered best to enhance Austria's role in arbitration and provide the international arbitration community with an easily recognisable framework. As far as the guiding principles are concerned, the old Austrian principles and those of the ML were not far apart. This means that 109 years of court decisions and scholarly writing will continue to be relevant to a large extent. In addition, as the new Austrian and German arbitration law are very similar, a large part of the German court cases and legal writing are of great assistance for solving issues under Austrian arbitration law. This article does not try to give a complete overview of the new law.3 It assumes a basic familiarity of the reader with the ML and does not include the Austrian rules on court procedures. This article will focus on pointing out differences between the new Austrian arbitration law and the ML.4 The sequence of sections of this article largely follows the sequence of topics of ML to facilitate the comparison. …

Die ICG Schiedsgerichtsordnung in der Praxis by Erich Schafer, Herman Verbist, and Christophe Imhoos

Die ICG Schiedsgerichtsordnung in der Praxis, by Erich Schafer, Herman Verbist and Christophe Imhoos. Published by Economica Verlag, (Bonn 2000, 281pp.). Price DM78. ISBN 3-87081-292-3. The increasing importance of Germany, German law and the German language to international commercial arbitration has manifested itself vividly in recent years. Among other developments, Germany momentously replaced Chapter 10 of its Code of Civil Procedure (Zivilprozessordnung) as of 1 January 1998 with an entirely new body of legislation respecting both domestic and international arbitration. Chapter 10 of the ZPO, as many practitioners have come to know it, is modelled closely but not entirely on the UNCITRAL Model Law, and is thus a readily accessible and workable piece of arbitration legislation, whether considered in its original German or in readily available translation. The enactment of the new Chapter 10 was consistent with the growing importance of German merchants as parties to cross-border arbitration agreements and proceedings. It also followed hard upon the active and marked participation of German-speaking practitioners, arbitrators and other commentators in the continuing development of arbitration jurisprudence and practice over the last several decades. German-language arbitration had in fact already thrived for years, including most notably in Switzerland and in Austria, but the enactment of the new German arbitration law was a further confirmation of the integral role of German industry, legal practice and academia in the development of international commercial arbitration. Parallel to the entry into force of the new Chapter 10 of the ZPO was the enactment of the latest version of the Rules of Arbitration of the International Chamber of Commerce as of 1 January 1998. Accordingly, international commerce between and relating …

German Arbitration Law The 1998 Reform and Recent Case Law

German Arbitration Law The 1998 Reform and Recent Case Law

Recht und Praxis des Schiedsverfahrens by Hilmar Raeschke-Kessler and Klaus Peter Berger

‘Short is beautiful’, one might exclaim after having consulted uiis book. Despite its shortness, it informs about all the essential facets of German arbitration law, both national and international. Thus, for those who do not have enough time (and is there anybody in our profession who does have enough time?), it presents itself as a rich source for all matters and materials which one must know about as an arbitrator or as counsel to a party in all stages of an arbitration, irrespective of whether such counsel has to phrase an arbitration clause, to give advice on the opening of arbitration proceedings, to represent a party in such proceedings or, finally, whether a domestic or foreign award is sought to be enforced in Germany. Needless to say, this book is also useful for foreign lawyers who need information on German arbitration law. Further, it is not only concise, but also easily comprehensible and in consequence suited for all of our foreign friends who know how to read German but do not feel in full command of it.

The Arbitrator's Contract

THE ARBITRATOR'S contract is an enigmatic phenomenon in the procedural relationships that exist in arbitration proceedings. It has given rise to several theories. Book Ten of the 1877 German Code of Civil Procedure (ZPO), which has since been revised by the new German Arbitration Law, only once mentioned the ‘contract concluded with an arbitrator’ and did this rather surreptitiously in section 1033 ZPO. According to the old section 1033, the arbitration agreement became null and void if the arbitrator withdrew from the contract concluded with him. Apart from this, the old version of the German Code of Civil Procedure only used the words ‘appointment of arbitrators’1 and ‘arbitrator's office’,2 which are terms that do not allude to the existence of an arbitrator's contract. On 1 January 1998, the new German Arbitration Law entered into force as the Tenth Book of the German Code of Civil Procedure following closely...

The New German Arbitration Law

Journal Article The New German Arbitration Law Get access Arbitration International, Volume 14, Issue 1, 1 March 1998, Pages iii–iv, https://doi.org/10.1093/arbitration/14.1.iii Published: 01 December 2014

The New German Arbitration Law In force as of 1 January 1998: Tenth Book of the German Code of Civil Procedure (Zivilprozessordnung; ZPO)

The New German Arbitration Law In force as of 1 January 1998: Tenth Book of the German Code of Civil Procedure (Zivilprozessordnung; ZPO)

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.

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 …

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 …

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 …

Right and Remedy in Common Law Arbitration and in German Arbitration Law

Right and Remedy in Common Law Arbitration and in German Arbitration Law