In March 2018 the German Arbitration Institute's (DIS's) new arbitration rules came into force. The new rules are a good choice in almost every setting, offering competitive fees for arbitrators and institutions and providing a modern and efficient arbitration framework that preserves and expands on the distinctive features of the previous DIS rules. These unique factors are particularly appealing to in-house counsel.
The Federal Supreme Court recently confirmed that foreign arbitration agreements which do not adhere to the formal requirements of Article II(2) of the New York Convention may still be valid under the less strict criteria of Section 1031 of the Code of Civil Procedure.
The Federal Supreme Court has changed its jurisdiction on preclusion in enforcement proceedings relating to international arbitral awards. The court held that a debtor is not required to exhaust all available remedies at the (foreign) seat of arbitration to preserve its right to argue in enforcement proceedings in Germany that no valid arbitration agreement exists.
Together with its conciliation rules of 2002, Germany's foremost arbitration institution has now established a comprehensive set of administered ADR procedures to respond to the growing demand for the timely and cost-effective (although not necessarily final and binding) resolution of disputes. This update provides an insight into which procedures might advantageously be applied in different situations.
The Frankfurt Higher Regional Court has frozen assets on the basis of an ex parte application for preliminary enforcement of a foreign arbitral award. The decision was made under Section 1063(3) of the Code of Civil Procedure's preliminary enforcement provision, which allows successful claimants in arbitration to obtain securing measures like asset freezes even before exequatur of the arbitral award is granted.
The Federal Supreme Court ended the German practice of permitting claimants to seek the enforcement of foreign judgments confirming arbitral awards. Overturning a 25-year-old ruling, the court no longer offers claimants a choice between the enforcement of the original arbitral award and the recognition of its exequatur from jurisdictions following the procedural merger doctrine.
The Supreme Court has held that disputes on the validity of shareholder resolutions in German limited liability companies are arbitrable, based on an arbitration clause in the company's articles of association. The court established a set of requirements for the validity of shareholder arbitration clauses that other jurisdictions may wish to take into account when considering their position on appropriate procedural safeguards.
In a recent case, the International Centre for the Settlement of Investment Disputes tribunal has refused to apply the 'most-favoured nation' clause of the German-Argentine bilateral investment treaty to its dispute settlement provision. It thereby contributed to the longstanding debate regarding the applicability of such clauses to dispute settlement provisions.
The European Parliament has adopted the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters in order to make mediation an attractive alternative to legal and arbitration proceedings. To comply with the directive, legislative provisions on the enforceability of all written mediation settlements must be introduced into German law within the next three years.
A higher regional court has held that a partial arbitral award which confirms the basis of a claim for damages but reserves judgment on the amount of the damages and an arbitral award dismissing a counterclaim (conditional upon the same factual issues as the claim) as unmerited do not constitute a (final) arbitral award and, as such, cannot be the subject of proceedings for annulment before the state courts.
An arbitral tribunal has confirmed the validity of an arbitration clause included in the claimant's general terms and conditions by way of an interim award in a commercial arbitration pursuant to the Rules of the German Institution of Arbitration. The tribunal argued that an arbitration clause can be included by referring to general terms and conditions that contain such a clause.
The Higher Regional Court of Berlin has refused the recognition and enforcement of an International Chamber of Commerce arbitral award issued in Shanghai on the grounds that the arbitration agreement was invalid according to the final and binding decision of a Chinese court.
The parties to a recent arbitration disagreed over, among other things, the jurisdiction of the arbitral tribunal of the Hamburg Chamber of Commerce, as the purchase agreement in dispute contained two separate and independent arbitration clauses referring to different arbitration institutions. The tribunal held that both arbitration clauses were valid, unambiguous and alternatively applicable.
The Higher Regional Court of Karlsruhe has held that if a defendant fails timely to challenge a foreign arbitral award in the award's country of origin, the respective arguments on which the challenge could have been based are also precluded in proceedings for a declaration of enforceability of the foreign arbitral award in Germany.
The continuing popularity of arbitration as an alternative dispute resolution tool in Germany in recent years has been confirmed by a recent report of Deutsche Institution für Schiedsgerichtsbarkeit eV (DIS), Germany's foremost arbitration institution, on the development of DIS arbitration in 2005. The aggregate amount in dispute in 2005 amounted to an impressive €451 million.
The Federal Supreme Court has held that an action not only in an ordinary civil procedure, but also in a documentary procedure (Urkundenprozess) according to Section 592 of the German Code of Civil Procedure, is excluded if the parties have submitted their disputes to arbitration.
The Federal Supreme Court recently ruled on the exequatur of a Dutch arbitral award. Among other things, the court held that the most favourable national enforcement rule in the New York Convention applies not only to the German procedural rules on the recognition and enforcement of arbitral awards, but also to the German conflict of laws rules and the applicable national law governing the arbitration agreement.
The Higher Regional Court of Düsseldorf has decided a case in which the defendant had sought to raise a set-off in proceedings for a declaration of enforceability of an arbitral award. The decision is of practical significance as it adds new arguments to the controversial debate as to whether such a set-off is allowed under Germany's Arbitration Law 1998.
The Federal Court of Justice recently delivered judgment in a case regarding the competence of an arbitral tribunal to decide on its own jurisdiction, pursuant to a so-called 'Kompetenz-Kompetenz' clause. The case has practical implications for drafting an arbitration agreement and confirms the permissibility of standard arbitration clauses in consumer contracts.
Litigation financing is a relatively new arrangement for claimants in Germany who want to spare themselves the often costly risks of court proceedings. A recent decision of the Higher Regional Court of Munich reveals that arbitration clauses in litigation financing agreements can extend to separate contracts having a close connection with those agreements.